Gerald Fisher v. US Dept of Justice

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: MCKEE, JORDAN and RESTREPO, Circuit Judges. Total Pages: 3. ALD-115

Case: 16-4120

Document: 003112539099

Page: 1

ALD-115

Date Filed: 02/14/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-4120
___________
GERALD LEE FISHER,
Appellant
v.
UNITED STATES DEPARTMENT OF JUSTICE
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-16-cv-01618)
District Judge: Honorable Arthur J. Schwab
____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 26, 2017
Before: MCKEE, JORDAN and RESTREPO, Circuit Judges
(Opinion filed: February 14, 2017)
_________
OPINION*
_________
PER CURIAM
Gerald Lee Fisher appeals the District Court’s order dismissing his complaint as
frivolous. For the reasons below, we will dismiss the appeal as frivolous.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 16-4120

Document: 003112539099

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Date Filed: 02/14/2017

In his complaint, Fisher alleged that an attorney from the Department of Justice
sent him a letter requesting that they speak briefly before a case management conference
regarding another District Court case Fisher was litigating. Fisher contended that this
letter violated his Fourth Amendment right to be left alone by the Government as well as
his rights to substantive and procedural due process. He asserted that the attorney’s
actions caused him emotional distress.
The District Court determined that an allegation of harm from litigating a lawsuit
Fisher brought himself did not allege a cause of action, and it would be futile to allow
him to amend his complaint. The District Court noted that by filing a lawsuit, Fisher had
subjected himself to the rules of procedure and practice of the District Court. One of
these rules, Fed. R. Civ. P. 26(f), requires the parties to confer before a scheduling
conference. The District Court dismissed the complaint as frivolous.
Because Fisher is proceeding in forma pauperis on this appeal, we must analyze
his appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under
§ 1915(e)(2)(B)(i), we must dismiss an appeal if the appeal is frivolous or malicious. An
action or appeal can be frivolous for either legal or factual reasons. Neitzke v. Williams,
490 U.S. 319, 325 (1989).
We agree with the District Court that Fisher’s complaint was frivolous. It also
failed to state a claim. On appeal, Fisher argues that he had a Fourth Amendment right to
be left alone by the Government. However, the Fourth Amendment protects, in relevant
part, “[t]he right of the people to be secure in their persons, houses, papers, and effects,
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Document: 003112539099

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Date Filed: 02/14/2017

against unreasonable searches and seizures.” The letter from the Government did not
violate the Fourth Amendment. By sending the letter, the attorney did not search or seize
anything of Fisher’s. Moreover, as pointed out by the District Court, it was Fisher
himself who initiated contact with the Government by bringing the other lawsuit.
Fisher also argues that the letter violated his right to procedural and substantive
due process. In order to state a claim of the violation of the right to procedural due
process, a litigant must allege that the Government deprived him of a protected interest in
life, liberty, or property and the deprivation occurred without due process. Burns v. Pa.
Dep’t. of Corr., 544 F.3d 279, 285 (3d Cir. 2008). Fisher has not shown that he has been
deprived of a protected interest. While Fisher asserts that the alleged harm caused by the
letter was foreseeable based on his medical issues, we see nothing in the language of the
letter quoted by Fisher that would cause harm. Fisher alleged that the attorney wrote that
he would like to “speak to [Fisher] briefly about [his] case prior to the initial case
management conference and imposition of a discovery schedule.” We note that Fisher
continued to litigate the other District Court case despite his allegation that receipt of the
letter caused him emotional distress.
In order to state a claim of a violation of his right to substantive due process,
Fisher needed to allege conduct that shocks the conscience. Cty of Sacramento v. Lewis,
523 U.S. 833, 847-49 (1998). He has not done so.
For the above reasons, we will dismiss the appeal as frivolous.

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