Thorpe v. New Jersey , 246 F. App'x 86 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-5-2007
Thorpe v. New Jersey
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2636
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Recommended Citation
"Thorpe v. New Jersey" (2007). 2007 Decisions. Paper 477.
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CLD-340 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-2636
________________
TONY THORPE,
Appellant
v.
STATE OF NEW JERSEY, Federal Government
_________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 06-cv-03259)
District Judge: Honorable Garrett E. Brown, Jr.
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Possible Summary
Action under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
August 16, 2007
BEFORE: RENDELL, SMITH and JORDAN, CIRCUIT JUDGES
(Filed: September 5, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Tony Thorpe appeals from the dismissal of his complaint by the United States
District Court for the District of New Jersey. Because Thorpe’s appeal presents no
substantial question, we will summarily affirm the judgment of the District Court.
Thorpe filed a complaint accusing the State of New Jersey of “wrongfully
depriving him of his children for almost a year,” after the New Jersey Division of Youth
and Family Services (“DYFS”) allegedly removed the children from the care of their
mother (from whom he was separated) and placed them in foster homes. Thorpe claims
that he was trying to obtain custody of the children at the time the DYFS removed them
from their mother, but that he was denied custody even though he was not involved in the
incident which led to DYFS’s actions. He also claims that DYFS negligently denied the
children medical care for “over one week.” He seeks $830,000.00 in damages.
Although Thorpe stated that the State of New Jersey violated his rights under 42
U.S.C. § 1981 and the Fifth Amendment, the District Court correctly construed Thorpe’s
complaint as asserting civil rights violations under 42 U.S.C. § 1983. The District Court
dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) due to the
State of New Jersey’s Eleventh Amendment immunity against suit, and declined to
exercise supplemental jurisdiction over the state law negligence claim. Thorpe timely
appealed and proceeds in forma pauperis.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of a dismissal
for failure to state a claim is plenary. Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir.
1993). We are in complete agreement with the District Court’s analysis and decision that
the State of New Jersey is immune and that the complaint thus fails to state a claim. The
Eleventh Amendment of the U.S. Constitution protects a state or state agency from a suit
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brought in federal court by one of its own citizens regardless of the relief sought, unless
Congress specifically abrogates the state’s immunity or the state waives its own
immunity. MCI Telecom. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503-04 (3d Cir. 2001);
Edelman v. Jordan, 415 U.S. 651, 663 (1974). Section 1983 does not abrogate states’
immunity. Quern v. Jordan, 440 U.S. 332, 340-41 (1979). And New Jersey has neither
consented to suit nor has it waived its Eleventh Amendment immunity. The District
Court, therefore, properly concluded that the State of New Jersey is immune from suit in
this matter.
Additionally, the District Court appropriately declined to exercise supplemental
jurisdiction over Thorpe’s state law negligence claim. See 28 U.S.C. § 1367(c)(3);
Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000).
For these reasons, we will summarily affirm the District Court’s May 9, 2007
Order. See L.A.R. 27.4; I.O.P. 10.6.
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