NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3479
___________
JASON COLLURA,
Appellant
v.
CITY OF PHILADELPHIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 08-cv-03880)
District Judge: Honorable Mary A. McLaughlin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 6, 2011
Before: BARRY, JORDAN and GARTH, Circuit Judges
(Opinion filed: April 6, 2011)
_________
OPINION
_________
PER CURIAM
Jason Collura appeals from a judgment entered in favor of the City of Philadelphia
(the City) following a non-jury civil trial in the United States District Court for the
Eastern District of Pennsylvania. For the reasons that follow, the judgment will be
affirmed.
I.
Collura first filed suit, under 42 U.S.C. § 1983, against the City in February 2008
(Civil Action 08-746), claiming that the Free Library of Philadelphia‟s Independence
Branch maintained an unconstitutional policy of reserving certain tables at certain times
for library patrons of East Asian ancestry. “Mr. Collura and the City ultimately agreed to
a dismissal of the lawsuit in return for the entry of a consent order that the Free Library of
Philadelphia may not prohibit any individual, at any time, from sitting at or utilizing any
table or seating arrangement because of that individual‟s race or ethnicity.” DC Mem.
Op., dkt #42, pg. 1 n.1.1 After Collura initiated Civil Action 08-746, Jennifer Chang, the
manager of Independence Branch, learned that Collura had a prior criminal conviction for
terroristic threats. On April 10, 2008, Chang drafted an internal memo stating that
Collura should no longer be allowed access to Independence Branch.
In the morning hours of April 25, 2008, Collura bumped into Corey Dorsey, the
municipal security guard at Independence Branch, on his way into the library. “Mr.
Dorsey was aware of Mr. Collura‟s lawsuit and M[s]. Chang‟s April 10 memo before this
incident.” Id. at pg. 4. The bumping incident was reported to the police, and later that
day Collura‟s visiting privileges at Independence Branch were officially suspended for six
1
Because a complete appendix was not prepared in this case, we will specifically
refer to documents in the District Court record as needed.
2
months. The reasons given in the suspension notice were as follows: (1) “Staring at
patrons using a computer”; (2) “Staring at staff”; and (3) “Pushing and striking the
Municipal Guard upon entering the library.” Pl.‟s Comp., dkt #3, Ex. A.
In August 2008, Collura again sued the City under § 1983, alleging that his
expulsion from the Independence Branch was effectuated in retaliation for his filing and
prosecution of Civil Action 08-746—activity protected by the First Amendment. Collura
requested declaratory and injunctive relief, as well as a public apology. The City filed its
answer, and the parties engaged in discovery and unsuccessful settlement negotiations.
Judge McLaughlin conducted a bench trial on September 10, 2009, after which
supplemental briefing was ordered on the issue of municipal liability.
By order entered August 9, 2010, the District Court directed that judgment be
entered in favor of the City of Philadelphia, despite “serious concerns that the library
employees took action against the plaintiff at least in part because of [Civil Action 08-
746].” DC Mem. Op., dkt #42, pg. 7. In reaching its verdict, the District Court
specifically ruled that a § 1983 claimant seeking only prospective, non-monetary relief
against a municipal entity is subject to the requirements of Monell v. Dep‟t of Social
Servs. New York City, 436 U.S. 658 (1978); in other words, such a claimant must show
that his alleged constitutional injury “was the result of municipal custom, policy, or
practice.” Fitzgerald v. Barnstable School Comm., 555 U.S. 246, --- , 129 S. Ct. 788, 797
(2009). The District Court ruled that Collura had not shown by a preponderance of the
3
evidence that the Independence Branch employees‟ conduct, “whether retaliatory or not,
was pursuant to a custom or practice of the City.” DC Mem. Op., dkt #42, pg. 7. Collura
timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. “To the extent that the issues on
appeal involve questions of law, we exercise de novo review. To the extent that the
District Court made findings of fact, we review them for clear error.” Bear Mountain
Orchards, Inc. v. Mich-Kim, Inc., 623 F.3d 163, 169 (3d Cir. 2010) (internal citation
omitted).
III.
The parties disagree whether the District Court erred in applying Monell to
Collura‟s suit for prospective, non-monetary relief. We have not squarely addressed this
issue in a precedential opinion, but the Supreme Court has now spoken definitively and
unanimously: “We conclude that Monell‟s holding applies to § 1983 claims against
municipalities for prospective relief as well as to claims for damages.” Los Angeles
County, Cal. v. Humphries, --- U.S. ---, 131 S. Ct. 447, 451 (2010).2 This was hardly
groundbreaking news, for “as Monell explicitly stated, „[l]ocal governing bodies . . . can
be sued directly under §1983 for monetary, declaratory, or injunctive relief where . . . the
action that is alleged to be unconstitutional implements or executes‟ a policy or custom.”
4
Id. at 452 (quoting Monell, 436 U.S. at 690) (emphasis in original).
Given that Monell is applicable, we perceive no legal error in the District Court‟s
conclusion that Collura failed to produce any evidence, let alone a preponderance of
evidence, showing that his visiting privileges at Independence Branch were suspended
pursuant to a City or Free Library policy or custom of doing so when a patron threatens or
initiates civil litigation. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d
Cir. 1990) (explaining that a government „policy‟ can be established “when a
„decisionmaker possess[ing] final authority to establish municipal policy with respect to
the action‟ issues an official proclamation, policy, or edict,” and that “[a] course of
conduct is considered to be a „custom‟ when, though not authorized by law, „such
practices of state officials [are] so permanent and well settled‟ as to virtually constitute
law.” ) (internal citations omitted). In particular, there was no evidence showing that
Chang was a “policymaker” under Pennsylvania law. Id. at 1481.
Accordingly, the judgment of the District Court will be affirmed. Collura‟s motion
to exceed Fed. R. App. P. 32(a)(7)(B)(ii)‟s type-volume limitation is granted.3
2
This appeal was stayed on October 29, 2010, pending the ruling in Humphries.
3
Collura attempts to raise a host of claims in his brief—including claims under 42
U.S.C. § 1985(3), 42 U.S.C. § 2000a, and the Fourteenth Amendment‟s Due Process
Clause—that were merely mentioned in passing in the complaint and were not argued
before the District Court at trial. It is well established that, absent compelling or
exceptional circumstances, this Court generally refuses to consider an argument or issue
that a party has failed to raise in the District Court. See Gucci Am., Inc. v. Daffy‟s, Inc.,
354 F.3d 228, 233 n.3 (3d Cir. 2003). We follow that practice here.
5