Victor Walthour v. City of Philadelphia

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2694
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VICTOR WALTHOUR,
Appellant
v.
CITY OF PHILADELPHIA; PNC BANK; JOHN W. HERRON; PAUL
FELDMAN; DEAN E. WEISGOLD; G. MICHAEL GREEN
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civil Action No. 2:21-cv-02779)
District Judge: Honorable Gerald A. McHugh
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Submitted Pursuant to Third Circuit LAR 34.1(a)
May 2, 2022
Before: GREENAWAY, Jr., PORTER, and NYGAARD, Circuit Judges
(Opinion filed: May 20, 2022)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Victor Walthour appeals pro se from the District Court’s dismissal of his civil
rights action filed pursuant to 42 U.S.C. § 1983.1 For the reasons that follow, we will
affirm the District Court’s judgment.
In June 2021, Walthour filed a complaint in the District Court, alleging that his
“right to freely associate with any bank of [his] choosing” had been violated, Compl. at 3,
apparently in the course of litigating prior state-court cases concerning his incapacitated
wife. The complaint named the following entities and individuals as defendants: (1) the
City of Philadelphia; (2) two judges who had presided over certain state-court
proceedings; (3) two private attorneys; and (4) PNC Bank, the trustee of Walthour’s
wife’s estate. Walthour had previously filed numerous actions in federal court over the
last decade against various subsets of this group of defendants, seeking to challenge
decisions that were made regarding his wife.
All defendants except for the City of Philadelphia moved to dismiss Walthour’s
claims against them for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). The District Court granted their motions, dismissing Walthour’s claims against
them with prejudice. The District Court also put Walthour on notice that it would dismiss
the remaining defendant (the City of Philadelphia) if he did not show cause why that
1
To the extent that Walthour alternatively sought to proceed under 18 U.S.C. § 242,
which is a criminal statute, he could not do so. See, e.g., Robinson v. Overseas Military
Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.
1989) (per curiam).
2
defendant should not be dismissed under Rule 12(b)(6). The District Court’s opinion
accompanying its show-cause order observed that Walthour’s complaint was “devoid of
any factual allegations that directly implicate the City, and it is difficult to conceive of a
theory of liability.” Dist. Ct. Mem. entered Aug. 16, 2021, at 3 n.1. When Walthour did
not respond by the show-cause deadline, the District Court dismissed the City of
Philadelphia with prejudice. Walthour then timely appealed.2
We will affirm the District Court’s dismissal of Walthour’s complaint. Walthour’s
claims against the two state-court judges are barred by absolute judicial immunity. See
Stump v. Sparkman, 435 U.S. 349, 355-57 (1978) (explaining that, absent circumstances
that are not present here, judges are not civilly liable for judicial acts). Walthour cannot
prevail on his claims against the two private attorneys and PNC Bank because he has not
made allegations suggesting that these defendants acted under color of state law for
purposes of § 1983. See Benn v. Universal Health Sys., Inc., 371 F.3d 165, 169-70 (3d
Cir. 2004). And Walthour made no allegations in his complaint about the sole remaining
defendant, the City of Philadelphia. He alleges in his appellate brief that one of the
judges named as a defendant in this case was employed by the City of Philadelphia and
thus the City of Philadelphia should be held liable for that judge’s decisions. However,
even if the City of Philadelphia had been that judge’s employer — we need not explore
2
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review is
plenary. See Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009).
3
that issue — “a municipality cannot be held liable under § 1983 on a respondeat superior
theory.” See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
The District Court did not err by declining to grant Walthour leave to amend his
complaint; amendment would be futile under the circumstances of this case. See Grayson
v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Although Walthour contests
the dismissal of his claims, he has not provided any additional factual allegations that
suggest that his claims should be allowed to proceed. Accordingly, we will affirm the
judgment of the District Court.3
3
After Walthour filed his appellate brief, Appellee PNC Bank filed a motion to dismiss
this appeal (as to PNC Bank only) or, in the alternative, to be excused from filing a brief.
PNC Bank subsequently filed a brief. PNC Bank’s motion to dismiss this appeal in part
is denied, and its request to be excused from filing a brief is denied as moot.
4