NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 22-2848

______________

SANJAY K. BHATNAGAR, Appellant

v.

MATTHEW MEYER, individually and in his official capacity as the New Castle County Executive; WILSON B. DAVIS, individually and in his official capacity as the New Castle County Attorney; NEW CASTLE COUNTY, a municipal corporation ______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. No. 1-21-cv-00126)

District Judge: Honorable Colm F. Connolly ______________

Submitted Under Third Circuit L.A.R. 34.1(a) on July 11, 2023 ______________

Before: SHWARTZ, RESTREPO, and CHUNG, Circuit Judges

(Opinion Filed: August 22, 2023) ___________

OPINION* ______________

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

Sanjay K. Bhatnagar, a former Assistant County Attorney (ACA) for New Castle

County (NCC or the County), sued his supervisor, Matthew Meyer, and the County

Executive, Wilson Davis, for terminating him. He alleges that he was terminated in

violation of the Due Process Clause of the Fourteenth Amendment and

.

For the following reasons, we will affirm.

I. BACKGROUND1

Bhatnagar was employed by the County as an ACA starting in June 2017. He is of

Indian descent and a member of the Hindu religion. Meyer was, at all relevant times, the

County Executive for NCC, and Davis was the County Attorney for NCC. On July 6, 2020,

while working on a project, Bhatnagar reached out to an outside law firm for help. A day

later, Davis emailed Bhatnagar condemning him for not following protocol and seeking

outside help. Bhatnagar replied and explained why he did so and suggested escalating it

to Davis’s boss, County Executive Meyer.

Two days after Bhatnagar emailed the outside law firm asking for help, Davis called

Bhatnagar, told him that he served at Davis’s pleasure, and offered him the choice of

1 Because this is an appeal from a grant of a motion to dismiss, we accept as true “[t]he facts alleged in the complaint and the reasonable inferences that can be drawn from those facts.” Farber v. City of Paterson,

(3d Cir. 2006). And because Bhatnagar quoted and relied on the transcript from his unemployment compensation hearing in his Complaint, which the Defendants attached as an exhibit to their motion to dismiss, the Court will consider the transcript as part of this appeal. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,

(3d Cir. 1993) (“[A] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.”)

2 resigning with a separation agreement or being terminated for insubordination. Bhatnagar

did not sign the proposed separation agreement and was then terminated. At his

unemployment compensation hearing, Bhatnagar testified that he did not sign the

termination letter because he believed his civil rights were violated.

Rather than signing the termination letter, Bhatnagar filed suit against Davis, Meyer,

and the County, and alleged that he was terminated in violation of the Due Process Clause

of the Fourteenth Amendment and § 1983. Defendants moved to dismiss. The District

Court dismissed his procedural due process claim (Count I) and municipal liability claim

(Count III), but allowed his equal protection discrimination claim (Count II) to proceed.

JA 18-19. He now timely appeals the dismissal of Counts I and III.2

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had federal question jurisdiction under

and

1343(a). This Court has appellate jurisdiction under

. This Court exercises

plenary review of a district court’s ruling on a 12(b)(6) motion to dismiss. Newman v.

Beard,

(3d Cir. 2010).

III. DISCUSSION

Count I – Procedural Due Process Claim

Bhatnagar wrongly claims that his dismissal from his job without a hearing deprived

him of a property interest without due process of law. “Procedural due process imposes

constraints on governmental decisions which deprive individuals of liberty or property

2 On September 2, 2022, Bhatnagar agreed to a stipulation voluntarily dismissing Count II with prejudice. Thus, our opinion focuses on Count I and III.

3 interests within the meaning of the Due Process Clause of the Fifth or Fourteenth

Amendment.” Mathews v. Eldridge,

(1976) (internal quotation marks

omitted). Because Bhatnagar’s Complaint alleges wrongdoing by local actors, rather than

federal actors, the Court addresses his procedural due process claim under the Fourteenth

Amendment. To plausibly state a procedural due process claim, Bhatnagar must establish

that (1) he had a property interest protected under the Fourteenth Amendment; and (2) the

procedures provided to him were constitutionally inadequate. See Alvin v. Suzuki,

(3d Cir. 2000). Thus, the threshold question is whether Bhatnagar had a

cognizable property interest protected under the Fourteenth Amendment.

The Constitution itself does not create property interests. See Bd. of Regents of State

Colls. v. Roth,

(1972). Instead, property interests are “created and their

dimensions are defined by existing rules or understandings that stem from an independent

source such as state law—rules or understandings that secure certain benefits and that

support claims of entitlements to those benefits.” Id.; see also Bishop v. Wood,

(1976) (“[T]he sufficiency of the claim of entitlement must be decided by

reference to state law.”).

Bhatnagar does not have a property interest in his employment protected by the

Fourteenth Amendment. As the District Court aptly stated, Section 1394 of Title 9 of the

Delaware Code unambiguously states that Assistant County Attorneys, like Bhatnagar,

“shall serve at the pleasure of the County Attorney.”3 See Grimaldi v. New Castle Cnty.,

3 The statute reads that “[t]he County Attorney shall appoint such Assistant County Attorneys as may be authorized by the County Council. The Assistant County Attorneys

4 No. 15C-12-096 (ESB),

, at *3 (Del. Super. Ct. Aug. 18, 2016) (stating

that “serv[ing] at the pleasure of” the New Castle County Executive is synonymous with

being an “at-will” employee); See Bhatnagar v. Meyer, No. 21-cv-00126-CFC,

, at *2 (D. Del. Dec. 20, 2021). And in Bishop, the Supreme Court held that no

deprivation of property under the Due Process Clause of the Fourteenth Amendment arises

from “the discharge of a public employee whose position is terminable at the will of the

employer when there is no public disclosure of the reasons for the discharge.”

; see also Chabel v. Reagan,

(3d Cir. 1988) (same).

Bhatnagar argues that the statute is ambiguous and should be read to provide “just

cause” protections. He argues that whenever “the Delaware General Assembly uses the

phrase ‘at the pleasure of’ and intends the employee to be dischargeable ‘at any time and

for any reason,’ it adds additional statutory language making that intent explicit.”

Appellant’s Br. at 14. If it does not add additional statutory language, like the relevant

statute here, then “such low level, non-policymaking” employees who serve “at the

pleasure of” other employees “retain various well-established” protections that do not make

them removable at will.4

In other words, “at the pleasure of”—without more—does not

mean “at the pleasure of.”

shall serve at the pleasure of the County Attorney. First Assistant County Attorneys shall be selected according to provisions of the Merit System of the New Castle County Code.”

. 4 Bhatnagar also creates a distinction between “high level” and “low level” employees, but does not cite, nor can the Court find, any case law or Delaware code provision establishing that distinction in this context. Bhatnagar’s citation to Harmon v. State,

(Del. 2013) is misplaced. The Delaware Supreme Court’s decision did not mention the distinction Bhatnagar draws.

at 1200–02. In fact, the court left undisturbed the lower

5 That cannot be so. The statute reads that the “Assistant County Attorneys shall serve

at the pleasure of the County Attorney.” Del. Code Ann. tit. 9 § 1394. “[A]t the pleasure

of” is synonymous with “at will.” See Grimaldi,

, at *3; see also Elmore

v. Cleary,

(3d Cir. 2005) (suggesting that an “at-will employee” is the

same as an employee who “serves solely at the pleasure of her employer”); Hill v. Borough

of Kutztown,

(3d Cir. 2006) (same). At will employment is subject to

termination “with or without cause.” See Collision v. State ex rel. Green,

, 99–

100 (Del. 1938). Hence, the legislature stating that Bhatnagar, an ACA, serves at will and

is subject to termination with or without cause does not leave room for the Court to interpret

it any other way. See Conn. Nat’l Bank v. Germain,

, 253–54, (1992)

(“[C]ourts must presume that a legislature says in a statute what it means and means in a

statute what it says there. When the words of a statute are unambiguous, then, this first

canon is also the last: judicial inquiry is complete.”) (internal citations and quotations

omitted); see also Lawson v. State,

(Del. 2014) (stating that, under

Delaware law, a statute is ambiguous only if it can have “two or more reasonable

interpretations” or “if a literal reading would lead to an unreasonable or absurd result not

contemplated by the legislature”) (internal citations and quotations omitted). Accordingly,

“at the pleasure of”—without qualification or more—really does mean “at the pleasure of.”

court’s finding that the employee-in-question served at the pleasure of his employee and was therefore removable at will. Harmon v. State, No. 07C-01-003 WLW,

, at *1 (Del. Super. Ct. Nov. 17, 2011), rev’d,

.

6 Count III – Monell Liability Claim

Bhatnagar alleges that the County is liable because the decisions made by Meyer

and Davis are attributable, to NCC under the doctrine of Monell v. Department of Social

Services of City of New York,

(1978). This claim fails because Bhatnagar no

longer has a cognizable constitutional claim.

A municipality “cannot be held liable under § 1983 on a respondeat superior

theory.” Id. at 691. But a municipality can be held liable when the “execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694; see

also Mann v. Palmerton Area Sch. Dist.,

(3d Cir. 2017), as amended

(Sept. 22, 2017) (plaintiff must show that “implementation of a municipal policy or custom,

causes a constitutional violation.”). Accordingly, the Court must analyze “whether

plaintiff’s harm was caused by a constitutional violation” and whether the municipality is

responsible for that violation. Collins v. City of Harker Heights,

(1992).

Bhatnagar’s Monell liability claims fail because he has no remaining cognizable

constitutional claim. Neither of the alleged constitutional claims—that is, the procedural

due process claim (Count I) nor the equal protection discrimination claim (Count II)—

remain. The procedural due process claim fails, as explained above, see supra, Section

III.A., and Bhatnagar voluntarily chose to dismiss his equal protection claim with prejudice

to proceed with this appeal, see supra, n.1.5 Therefore, because Bhatnagar lacks an

5 Even if the dismissal of Bhatnagar’s equal protection claim did not foreclose his Monell claim, his Monell claim would still fail because neither Davis nor Meyer constitute

7 underlying claim of a constitutional violation, there cannot be a Monell claim. See City of

Los Angeles v. Heller,

(1986).

Dismissal with Prejudice

The District Court also did not err in dismissing Bhatnagar’s complaint with

prejudice and it did not need to provide Bhatnagar an opportunity to amend. While

Defendants argue that Bhatnagar’s failure to identify additional facts he would include in

an amended complaint should bar him from seeking permission to amend, we have held

that, in civil rights cases, “leave to amend must be granted sua sponte before dismissing”

the complaint. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,

(3d Cir. 2002). Here, no new facts would change the legal conclusions that Bhatnagar

did not have a property interest in his continued employment and neither Davis nor Meyer

were official policymakers. As such, the District Court did not abuse its discretion in

dismissing the complaint with prejudice.

IV. CONCLUSION

We will affirm the District Court’s order dismissing Counts I and III with prejudice.

official policymakers sufficient to hold NCC liable for their termination of Bhatnagar. McGreevy v. Stroup,

, 367–68 (3d Cir. 2005) (explaining that a municipality can only be liable for the single act of a municipal official when that official is an official policymaker).

8