Georr Birla v. New Jersey Board of Nursing , 549 F. App'x 76 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2567
___________
GEORR M. BIRLA,
Appellant
v.
NEW JERSEY BOARD OF NURSING;
MR. GEORGE J. HERBERT, Executive Director, et al.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 2-12-cv-01612)
District Judge: Honorable Stanley R. Chesler
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 12, 2013
Before: SMITH, GARTH and ROTH, Circuit Judges
(Opinion filed: November 19, 2013)
_________
OPINION
_________
PER CURIAM
Georr M. Birla appeals pro se from the order of the District Court dismissing his
amended complaint. We will affirm.
Birla, who is African American, filed pro se a two-page Title VII complaint
against the New Jersey Board of Nursing and its executive director George J. Herbert,
alleging, in conclusory fashion, that they refused to issue him a license to work as a
Certified Homecare Health Aide because of “racial and retaliatory discrimination.” On
defendants’ motion to dismiss, the District Court dismissed Birla’s complaint on the
ground that he had not alleged that defendants are his “employers” under Title VII. See,
e.g., George v. N.J. Bd. of Veterinary Med. Exam’rs, 794 F.2d 113, 114 (3d Cir. 1986)
(holding that a licensing board that denied the plaintiff a license is not a Title VII
“employer”). The District Court’s dismissal was without prejudice, however, and the
District Court granted Birla leave to amend to assert any federal claims he might have,
including any claim under 42 U.S.C. § 1983. Birla filed both an amended complaint and
a notice of appeal, and we dismissed his appeal for lack of jurisdiction because the
District Court had not entered a final judgment. (C.A. No. 12-4422, Apr. 3, 2013.)
Birla’s three-page amended complaint again sought relief under Title VII and also
invoked § 1983. This time, Birla added the allegation that defendants denied him a
license because their criminal history background check, which he characterized without
elaboration as a “racial and retaliatory discriminatory practice,” revealed “inaccurate
records more than 15 years old.” Defendants again filed a motion to dismiss, and the
District Court again granted it. The District Court once again dismissed Birla’s Title VII
claims for lack of a Title VII “employer.” It also liberally construed his complaint as
asserting an equal protection violation under § 1983. The District Court dismissed
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Birla’s § 1983 claims for damages against the Board and against Herbert in his official
capacity because state agencies and officials in their official capacities are not “persons”
subject to liability for damages under § 1983. See Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989); McCauley v. Univ. of the V.I., 618 F.3d 232, 241 (3d Cir. 2010).
The District Court dismissed Birla’s § 1983 claims against Herbert in his personal
capacity and for injunctive relief because Birla’s conclusory allegations did not show any
plausible entitlement to relief, and thus did not satisfy the pleading standard of which the
District Court had notified him in its previous opinion. See Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007)). The District Court dismissed most of Birla’s claims with prejudice. Its
dismissal of Birla’s § 1983 claims against Herbert personally and for injunctive relief,
however, was “without prejudice.” The District Court did not explain the intended effect
of that dismissal, but it did not expressly give Birla leave to amend as it had done before
and the case remains marked “closed” on the District Court docket. Birla appeals.
II.
The District Court’s dismissal of some of Birla’s claims without prejudice raises a
threshold jurisdictional issue. A dismissal without prejudice generally does not constitute
a final order reviewable under 28 U.S.C. § 1291 because it does not finally resolve the
litigation and instead implicitly invites the plaintiff to replead. See Borelli v. City of
Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per curiam). Under the circumstances,
however, we construe the District Court’s order as final.
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The District Court clearly knew how to give Birla leave to amend when that was
its intent, and it chose not to do so a second time. Moreover, the District Court cited
Phillips in discussing the pleading standard, and we went on in that case to repeat our
long-standing suggestion “that district judges expressly state, when appropriate, that the
plaintiff has leave to amend. . . .” Phillips, 515 F.3d at 236 (quoting Shave v. Fauver, 213
F.3d 113, 116 (3d Cir. 2000)); see also Pennsylvania Family Inst., Inc. v. Black, 489 F.3d
156, 163 n.4 (3d Cir. 2007) (deeming the lack of any statement that the plaintiffs had
leave to amend an indicia of finality). Because the District Court did not grant Birla
leave to amend again, we do not construe its dismissal of certain claims “without
prejudice” as an implicit invitation to file another amended complaint. Instead, we
construe it merely as a statement that the District Court did not reach the merits of Birla’s
claimed but inadequately pleaded entitlement to federal relief, which means that its ruling
is without prejudice to Birla’s ability to seek whatever relief might be available in state
court. In sum, we conclude that the District Court intended its order to finally resolve the
case, and we thus have jurisdiction under § 1291.
III.
Turning to the merits, and reviewing Birla’s complaints de novo, we agree that
dismissal was appropriate for the reasons summarized above and discussed more
thoroughly by the District Court. No matter how liberally construed, neither of Birla’s
complaints raises any inference that defendants have violated Title VII or any other
federal law. Nor can we say that the District Court abused its discretion in declining to
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grant Birla leave to file another amended complaint, and Birla does not argue otherwise.
The District Court explained the pleading standard in its initial order granting Birla leave
to amend, and it even went so far as to suggest that he might be attempting to assert
claims that might be actionable under § 1983. Birla’s second conclusory attempt to state
a federal claim, however, suffered from the same deficiencies as his first. Nothing in
Birla’s complaints suggests that he could assert a plausible federal claim if again given
leave to plead his claims in more detail. Nor does anything in Birla’s briefs, in which he
makes certain allegations for the first time on appeal. We generally do not consider
allegations made for the first time on appeal, but we note that Birla’s new allegations still
fail to suggest the existence of any plausible federal claim. 1 Finally, Birla raises certain
legal arguments for the first time in his reply brief. We generally do not consider
arguments raised for the first time in reply either, but we note that Birla’s arguments are
either inapposite or otherwise lack merit. 2
1
Birla now alleges that he graduated from a certified nursing program and that, although
he provided defendants with evidence that he has not been convicted of a disqualifying
crime and was deemed eligible for certification in November 2011, defendants still have
not placed him in the database of those eligible for employment. (Appellant’s Br. at 4.)
Defendants, also for the first time on appeal, respond that they notified Birla that he
would be licensed upon their receipt of certain documentation that he still has not
provided. (Appellees’ Br. at 4 n.1.) We express no opinion on these allegations except to
note that Birla’s new allegations do not suggest that he could further amend his complaint
to state a plausible federal claim.
2
For example, Birla argues that the Board is a Title VII “employer” because its licensing
decision controls his eligibility for employment, but that argument is squarely foreclosed
by our holding in George that “Title VII . . . is not applicable to the licensing functions of
a public agency exercised under the police powers of a state.” George, 794 F.2d at 114.
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IV.
For these reasons, we will affirm the judgment of the District Court. Our ruling is
without prejudice to Birla’s ability to seek whatever relief may be available in the New
Jersey state agencies or state courts, an issue on which we express no opinion.
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