MARK W. BARSHINGER and HENRIETTA D. BARSHINGER v. Steven R. Buffington

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NO. 04-2908
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MARK W. BARSHINGER and
HENRIETTA D. BARSHINGER,
Appellants
v.
STEVEN R. BUFFINGTON; FRANCIS N. NEWHAMS;
DARRAGH’S AUTO BODY and THE CITY OF YORK.
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On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. No. 03-cv-00506)
District Judge: Honorable Christopher C. Conner
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Submitted Under Third Circuit LAR 34.1(a):
April 18, 2005
Before: ROTH, FUENTES and BECKER, Circuit Judges.
(Filed: April 28, 2005)
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OPINION
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BECKER, Circuit Judge.
Plaintiffs Mark W. Barshinger (“Barshinger”) and Henrietta D. Barshinger appeal

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from an order of the District Court granting summary judgment to defendants Steven R.
Buffington, Francis N. Newhams, Darragh’s Auto Body and the City of York. It would
be difficult to improve upon the comprehensive discussion of the facts and the merits
contained in the District Court’s opinion, and, our scope of review being de novo, we
affirm essentially for the reasons set forth therein.
As the District Court explained, with respect to the unlawful search and seizure
claim, the undisputed facts of record establish that appellants’ building had serious
structural problems; the roof was partially collapsed; the rear wall of the home was
completely gone; the walls were deteriorating; and Barshinger exacerbated the situation
by placing numerous vehicles on the first floor and basement of the property. As we read
the record, there were exigent circumstances that justified the warrantless entry into the
property on October 4, 2001.
At all events, the District Court properly concluded that appellees Newhams and
Buffington were immune from liability on the unlawful search and seizure claim because
the law was not clearly established at the time that they acted. With respect to the
malicious prosecution claim, it is undisputed in this case that Mark Barshinger was found
guilty on several of the October 2001 citations issued against him, and hence he cannot
establish an essential element of a malicious prosecution claim. With respect to the May
2002 citations, there was no lack of probable cause to support the charges, as the property
remained hazardous.

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Finally, Mark Barshinger’s First Amendment retaliation claims are patently
without merit. The record establishes that defendant Buffington acted within his
municipal authority to issue the citations for the violations of the fire code; the record is
devoid of any evidence of improper motive; and the record does not support the
contention that Buffington retaliated against Mark Barshinger or that the asserted
violations were mere “pretext” for his decision.
The judgment of the District Court will be affirmed.

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