Walter J. Swinehart v. Honorable R. Barry McAndrews, Individually

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3515
___________
WALTER J. SWINEHART,
Appellant
v.
HONORABLE R. BARRY MCANDREWS, INDIVIDUALLY AND AS PRESIDENT
JUDGE OF THE SEVENTH JUDICIAL DISTRICT OF PENNSYLVANIA and
CHARLES A. CAREY, JR., INDIVIDUALLY AND AS DEPUTY COURT
ADMINISTRATOR OF THE SEVENTH JUDICIAL DISTRICT OF PENNSYLVANIA
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civil Action No. 01-2281)
District Judge: The Honorable Anita B. Brody
___________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 11, 2003
Before: ALITO and FUENTES, Circuit Judges and PISANO*, District Judge
(Opinion Filed: May 2, 2003)
* The Honorable Joel A. Pisano, United States District Judge for the District of New Jersey,
sitting by designation.

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_______________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge:
Plaintiff Walter J. Swinehart appeals the District Court’s grant of summary
judgment in favor of defendants, R. Barry McAndrews, the president judge of the Seventh
Judicial District of Pennsylvania, and Charles A. Carey, Jr., the deputy court administrator
of the District, on his 42 U.S.C. § 1983 claims. Plaintiff asserts that the District Court
erred in concluding that defendants did not violate his due process rights when defendants
directed, without first holding a hearing, that he was to receive no work from any court or
court related department in the Seventh Judicial District. Because we agree with the
District Court that Swinehart did not have a protected property interest in continuing to
receive assignments from the Seventh Judicial District, we will affirm.
I. Facts and Procedural Background
The factual allegations underlying this case are well known to the parties, and
therefore, they are not detailed here, except to the extent that they directly bear upon the
analysis. Swinehart is a constable, duly elected under the laws of the Commonwealth of
Pennsylvania. After receiving a complaint against Swinehart based on the manner in
which he conducted himself while serving a warrant for non-payment of child support,
Judge McAndrews instructed deputy court administrator Carey to advise district justices
in Bucks County that Swinehart was not to be issued any additional work assignments.

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At the direction of Judge McAndrews, Carey forwarded a copy of the complaint about
Swinehart to the Bucks County Director of Domestic Relations and the Chief Domestic
Relations Investigative Officer and advised them that Swinehart was not to receive
assignment from the district courts because he had been involved in a similar incident in
the recent past. Prior to the issuance of the directives, Swinehart was contacted
frequently by the Seventh Judicial District to serve warrants within the District and
throughout Pennsylvania. He was compensated for his work on a fee for services basis.
In his complaint, Swinehart asserted that, as a result of the directives, he lost 95% of his
work, which amounted to approximately $1,000 a week, and that, because his reputation
was harmed, he was unable to secure work in neighboring districts. On May 9, 2001,
Swinehart brought suit under 42 U.S.C. § 1983 and 13 Pa. Cons. Stat. Ann. § 1 et seq.,
alleging that defendants violated his due process rights by issuing directives to district
judges of Bucks County and to the Domestic Relations Department and possibly other
departments of Bucks County, directing that he be given no assignments.
Specifically, in the first count of plaintiff’s complaint, he alleged that defendants
deprived him of his right of liberty without due process of law in violation of state and
federal law. In the second count, plaintiff alleged that defendants caused him to suffer
loss of reputation in the community and prevented him from earning a living in the
profession in which he is trained. In the third and final count of his complaint, plaintiff
alleged that defendants deprived him of property rights arising out of his position as a

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constable without due process of law.
After discovery was completed, the parties filed cross-motions for summary
judgment. The District Court granted summary judgment in favor of defendants on the
grounds that plaintiff had not identified a liberty or property interest in his position as
constable and had not demonstrated that defendants failed to provide him with
appropriate process to safeguard his reputation. Swinehart timely appealed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
The standard of review applicable to an order granting summary judgment is
plenary. See Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). We apply the same
test employed by a District Court under Federal Rule of Civil Procedure 56(c). See Kelley
v. TYK Refractories Co., 860 F.2d 1188, 1192 (3d Cir. 1988). Accordingly, the District
Court’s grant of summary judgment in favor of the defendants was proper only if it
appears that “there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In evaluating the
evidence, we are required “to view [the] inferences to be drawn from the underlying facts
in the light most favorable to the party opposing the motion.” Bartnicki v. Vopper, 200
F.3d 109, 114 (3d Cir. 1999) (citation omitted).
III. Discussion

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Swinehart asserts on appeal that the District Court erred in concluding that
defendants did not deprive him of his property rights without due process of law. He
asserts that the Pennsylvania Supreme Court has held that constables are part of the
executive branch of government and, therefore, may not be placed under the supervisory
authority of the judicial branch of government. See In re Act 147 of 1990, 528 Pa. 460,
598 A.2d 985 (Pa. 1991). Swinehart asserts that, therefore, absent a hearing concerning
whether he committed acts which justified his total removal from office, he had the right
to serve as a constable without limitation of his duties or responsibilities by the
defendants.
We agree with the District Court that defendants are entitled to summary judgment
because they did not deprive Swinehart of a property interest which implicates due
process concerns. “The requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment’s protection of
liberty and property. When protected interests are implicated, the right to some kind of
prior hearing is paramount. But the range of interests protected by procedural due process
is not infinite.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972).
In Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250 (3d Cir. 1994), we
explained that, in order to demonstrate that an expected benefit is a property interest for
due process purposes, a plaintiff must demonstrate “entitlement to a property interest
created expressly by state statute or regulation or arising from government policy or a

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mutually explicit understanding between a government employer and an employee." Id.
at 1256 (citing Carter v. City of Philadelphia, 989 F.2d 117, 120 (3d Cir. 1993)). Here,
plaintiff does not identify a property interest in receiving work from the Seventh Judicial
District.
Under Pennsylvania Law, constables are considered to be independent contractors.
See In re Act 147 of 1990, 528 Pa. at 463, 598 A.2d at 986. They do not receive salaries,
but instead, are paid on a per job basis. See Commonwealth v. Roose, 456 Pa. Super.
238, 240, 690 A.2d 268, 269 (Pa. Super. 1997). Indeed, plaintiff concedes that he has no
right to secure any particular assignment and cannot demand work from any court or
agency of the Seventh Judicial District. Plaintiff asserts, rather, that the property interest
implicated by defendants’ actions is his right to have his services sought, state wide,
without restriction.
We agree with the District Court that the state court’s directives were consistent
with the supervisory authority of Judge McAndrews, as president judge, over justices
within the Seventh Judicial District. While the directives may have made it more difficult
for Swinehart to secure work from other sources, defendants did not deprive him of a
protected property interest by issuing them because plaintiff has no constitutional
property interest in receiving assignments in the Seventh Judicial District or elsewhere.
“It is the liberty to pursue a particular calling or occupation and not the right to a specific
job that is protected by the Fourteenth Amendment.” Piecknick v. Commonwealth of

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Pennsylvania, 36 F.3d at 1262.
IV. Conclusion
After carefully reviewing the arguments of the parties and applicable law, we
affirm the District Court’s grant of summary judgment in favor of defendants for
substantially the reasons set forth in the District Court’s thorough and well-reasoned
opinion.
_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
By the Court,
/s/Julio M. Fuentes
Circuit Judge

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