Wrench Transportation Systems, Inc.; James Malone, Jr. v. Frank Bradley

The Honorable Jane A. Restani, Chief Judge, United States Court of International1
Trade, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4817
_____________
WRENCH TRANSPORTATION SYSTEMS, INC.;
JAMES MALONE, JR.,
Appellants
v.
FRANK BRADLEY; JOHN F. KENNEDY;
MARIANNE LEWICKI; LEAH ANN MCMAHON
_______________
On Appeal from the United States District Court
for the District of New Jersey
(No. 95-cv-06203)
District Judge: Honorable Jose L. Linares
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 20, 2008
Before: BARRY and CHAGARES, Circuit Judges and RESTANI, Judge1
(Filed: July 28, 2009)
OPINION OF THE COURT

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CHAGARES, Circuit Judge.
Plaintiffs Wrench Transportation Systems, Inc. and its sole stockholder, James
Malone, Jr. (“Malone”) appeal the District Court’s grant of summary judgment in favor of
defendants John Kennedy and Leah Ann McMahon (“Kennedy” and “McMahon”).
Because we find that Malone is not entitled to substantive due process protection for his
purported interest in either his right to “engage in business” or his personal property
ownership of his trucks, we will affirm the District Court’s grant of summary judgment in
favor of Kennedy and McMahon.
I.
Because we write only for the parties, we will only address the facts that are
relevant to our analysis. This case arises out of the civil forfeiture of certain Malone
trucks seized in connection with a New Jersey state criminal investigation about the
illegal transport of waste oil. Malone claims that the defendants violated his substantive
due process rights when they allegedly refused to return the Malone vehicles unless
Malone signed a release and provided testimony for them in connection with the criminal
investigation.
To pursue this claim, Malone sued Frank Bradley (a New Jersey state investigator)
(“Bradley”), Marianne Lewicki (a New Jersey state investigator) (“Lewicki”), Kennedy,
and McMahon under 42 U.S.C. § 1983. In 2003, the District Court granted summary
judgment to defendant Marianne Lewicki on the grounds of absolute immunity. See

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Appendix (App.) 14-15. Malone did not appeal that decision. In Wrench Transp. Serv.,
Inc. v. Bradley, 136 F. App’x 521 (3d Cir. 2005) (“Wrench I”), we found that Bradley
was entitled to qualified immunity because Malone was unable to show a causal
connection between Bradley’s actions and the return of the Malone trucks. See Wrench I,
136 F. App’x at 522. At that time, we declined to decide whether Malone had a
protectible substantive due process interest. Id.
In Wrench Transp. Sys., Inc. v. Bradley, 212 F. App’x 92, 98-100 (3d Cir. 2006)
(“Wrench II”), we found that Kennedy and McMahon were not entitled to absolute
immunity for their alleged actions in connection with their post-seizure conduct regarding
Malone’s property, because they were acting in an investigatory, rather than a
prosecutorial, capacity. We also held that there was no evidence that Kennedy or
McMahon tried to coerce false testimony from Malone in exchange for the trucks. Id. at
100.
The case then returned to the District Court, where Kennedy and McMahon argued
both that Malone had failed to show that his substantive due process rights were violated,
and that, even if Malone’s rights had been violated, Kennedy and McMahon were still
entitled to qualified immunity. The District Court granted summary judgment in favor of
Kennedy and McMahon. It found that, with regard to Kennedy, Malone had failed to
establish a causal connection between Kennedy’s actions and his alleged injuries, as he
was required to do, and that Kennedy was entitled to summary judgment. See Wrench

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Transp. v. Bradley, No. 95-cv-06203, 2007 WL 4233011 at *4, *9 (D.N.J. Nov. 29, 2007)
(“Wrench III”). In addition, the District Court noted that even if Malone had established
a causal connection between Kennedy’s actions and his alleged injuries, his failure to
establish that he had a property interest that is protected by substantive due process would
result in the failure of his claim. Although the District Court held that McMahon’s
actions met the causal connection standard, it nevertheless found that McMahon was
entitled to summary judgment because Malone failed to establish a substantive due
process violation, a showing which is required for a 42 U.S.C. § 1983 claim. Id. at *8.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 1343. We have
jurisdiction pursuant to 28 U.S.C. § 1291. This Court reviews the grant of summary
judgment de novo. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir. 2008). “Summary
judgment is appropriate only where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Id. (citation omitted). See Fed.
R. Civ. P. 56(c). When analyzing a summary judgment claim, “we must view the facts in
the light most favorable to the non-moving party, and draw all reasonable inferences
therefrom in that party’s favor.” New Jersey Transit Corp. v. Harsco Corp., 497 F.3d
323, 326 (3d Cir. 2007) (citation omitted).
III.
Section 1983 provides that “[e]very person who, under color of any statute,

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ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .” It is a remedial statute; it does not create rights. Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To succeed on a § 1983 claim, “a plaintiff
must show that the defendants, acting under color of law, violated the plaintiff’s federal
constitutional or statutory rights, and thereby caused the complained of injury.” Elmore
v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005) (citation omitted). Thus, we first look to see
whether Malone was deprived of a constitutional right. The District Court found that he
was not. We agree.
Malone contends that Kennedy and McMahon violated his rights under the
substantive due process clause of the Fourteenth Amendment when they failed to return
the Malone trucks. He argues that “ownership of trucks, which are used to support [a]
business, is a property interest protected by the Constitution . . . .” Appellant Br. at 27-28.
He also contends that he has a fundamental right to “conduct business.” Id. at 30.
The Fourteenth Amendment provides that no state shall “deprive any person of
life, liberty, or property, without due process of law . . . . ” U.S. Const. amend. XIV.
Substantive due process is a “component of the [Fourteenth Amendment] that protects
individual liberty against ‘certain government actions regardless of the fairness of the

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procedures used to implement them.’” Collins v. City of Harker Heights, 503 U.S. 115,
125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Supreme Court
explained in Collins that “[a]s a general matter, the Court has always been reluctant to
expand the concept of substantive due process because guideposts for responsible
decisionmaking in this . . . area are scarce and open-ended.” Id. (citation omitted). See
also Nicholas v. Pa. State. Univ., 227 F.3d 133, 140 (3d Cir. 2000) (citation omitted)
(“The history of substantive due process ‘counsels caution and restraint.’”).
Whether the property right asserted is entitled to substantive due process protection
depends on whether it is considered “fundamental.” Nicholas, 227 F.3d at 140.
Fundamental rights are rights that are “deeply rooted in the Nation’s history and traditions
. . . . [and] interests implicit in the concept of ordered liberty like personal choice in
matters of marriage and family.” Id. at 143 (citations and quotation marks omitted).
While this Court has found that there can be a fundamental interest in real property,
interests like “a low bidder’s entitlement to state contract” as well as an entitlement to
public tenured employment are not fundamental. Id. at 142. Indeed, Malone concedes
that this Court has held that employment is not a protected property interest under a
substantive due process analysis.
Here, we agree with the District Court’s finding that Malone’s asserted interests —
the right to “engage in business” and his right to the ownership of the trucks — are more
similar to the type of intangible employment rights that this Court has rejected as not

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protected by substantive due process than the real property interests which can be
protected by substantive due process. Cf. Leib v. Hillsborough County Pub. Transp.
Comm’n, 558 F.3d 1301, 1306 n.4 (11th Cir. 2009) (noting that while the plaintiff
“abandoned” his claim that he was deprived of the “right to earn a living” nevertheless it
“would have failed in any event given . . . that employment rights do ‘not enjoy
substantive due process protection . . . .’”); Hill v. Borough of Kutztown, 455 F.3d 225,
234 n.12 (3d Cir. 2006) (“To the extent [plaintiff’s] substantive due process claim was
based not only on loss of his job, but also on reputational injury that decreased his ‘ability
to earn a living,’ it also fails.”); Medeiros v. Vincent, 431 F.3d 25, 32 (1st Cir. 2005)
(“The right to ‘make a living’ is not a ‘fundamental right’ . . . for substantive due process
purposes.”). In addition, while we have stated that “ownership is a property interest
worthy of substantive due process protection,” DeBlasio v. Zoning Bd. of Adjustment, 53
F.3d 592, 600 (3d Cir. 1995), abrogated on other grounds by United Artists Theatre Cir.,
Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003), in Nicholas, we noted:
“we have so far limited non-legislative substantive due process review to cases involving
real property ownership.” 227 F.3d at 141 (emphasis added). Accordingly, we conclude
that Malone has failed to establish that his personal property interest in his trucks is
“fundamental” for purposes of our Fourteenth Amendment substantive due process
analysis.
We therefore find that Malone has failed to establish that he has a property right

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Because we find that Malone’s claim does not establish the deprivation of a2
Constitutional right, we need not determine whether Kennedy and McMahon are entitled
to qualified immunity. See Pearson v. Callahan, 129 S. Ct. 808, 815-18 (2009)
(upholding the two prongs of qualified immunity analysis — that a plaintiff must show a
“violation of a constitutional right” and that the right was “clearly established”— but
finding that they do not necessarily have to be examined in a particular order).
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which is protected by the Constitution. Because Malone has failed to establish any2
substantive due process right here, regardless of the any causal connection between
Kennedy and the return of the trucks, the arguments that Malone makes in his brief
regarding potential genuine issues of material fact with regard to whether Kennedy
caused a deprivation of his rights are rejected. Accordingly, the District Court did not err
in granting summary judgment in favor of Kennedy and McMahon.
We briefly note that Malone also argues that the District Court erred when it found
that Malone was barred from challenging a protective order that had been issued by the
Magistrate Judge in this case because Malone had not filed timely objections. This Court
has previously considered and rejected Malone’s argument on this issue. Wrench II, 212
F. App’x at 100-01. We are not inclined to disturb our prior decision, and will therefore
affirm the District Court’s ruling.
V.
For the foregoing reasons, we affirm the judgment of the District Court.

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