McDeavitt v. McCarthy

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2310
___________
PAMELA MCDEAVITT; LEO L. MCDEAVITT, JR.,
Appellants
v.
THE HONORABLE MICHAEL MCCARTHY; THE HONORABLE JUDITH
FRIEDMAN; FIFTH JUDICIAL DISTRICT; BENEFICIAL CONSUMER DISCOUNT
CO, DBA Beneficial Mortgage Co of Pennsylvania; ANDREW K. STUTZMAN;
MICHELLE H. BADOLATO; IAN LONG; STRADLEY, RONON, STEVENS AND
YOUNG; KIM HONG; TONY, (Motions Clerk)
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-18-cv-00249)
District Judge: Honorable David S. Cercone
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 26, 2019
Before: GREENAWAY, Jr., RESTREPO, and FUENTES, Circuit Judges
(Opinion filed: April 9, 2019)
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OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pamela McDeavitt and Leo L. McDeavitt, Jr., appeal the District Court’s sua
sponte dismissal of their case pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)–(iii) because the
complaint was frivolous, failed to state a claim, and sought monetary relief against
defendants who are immune from such relief. For the following reasons, we will affirm
the District Court’s judgment.
The McDeavitts brought suit against Judge McCarthy, Judge Friedman, and Tony
(a Motions Clerk); the Fifth Judicial District; Stradley, Ronon, Stevens, and Young (a law
firm); Andrew Strutzman, Michelle Badolato, Ian Long, and Kim Hong (attorney
defendants); and Beneficial Mortgage Company of Pennsylvania (Beneficial). The
McDeavitts maintained they had been denied due process and equal access to the court
system in a foreclosure case which was taking place in the Court of Common Pleas of
Allegheny County. The McDeavitts alleged violations of 42 U.S.C. §§ 1983 and
1985(3), the Fourteenth Amendment’s Due Process clause, and state-law claims for
fraud, theft, and conversion.
After the District Court granted the McDeavitts’ motion to proceed in forma
pauperis (IFP), the case was referred to a Magistrate Judge, who drafted a Report and
Recommendation (R&R) advising that the case be dismissed. The Magistrate Judge
reasoned that the Fifth Judicial District, Judge McCarthy, Judge Friedman, and Tony the
Motions Clerk could not be sued due to immunity under the Eleventh Amendment.
Additionally, to the extent these parties were being sued in their individual capacities,
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judicial immunity acted as a bar to suit against the judges and quasi-judicial immunity
barred a suit against the Motions Clerk.
As to the § 1983 claims against the attorney defendants, the law firm, and
Beneficial, the Magistrate Judge determined that none of these parties were state actors,
and thus § 1983 was inapplicable. With regard to § 1985(3), the Magistrate Judge found
that the McDeavitts had not alleged specific facts that would support a claim for
conspiracy. Finally, the Magistrate Judge recommended that the District Court decline to
exercise supplemental jurisdiction over the state law claims for fraud, theft, and
conversion. The District Court adopted the R&R and dismissed the complaint pursuant
to the IFP screening provisions of 28 U.S.C. § 1915(e)(2)(B)(i)–(iii). The McDeavitts
timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District
Court’s sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) is de novo. 1 See
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). A District Court may dismiss a
complaint sua sponte on the immunity grounds of § 1915(e)(2)(B)(iii) when it is clear on
the face of the complaint that a party is immune from suit. See Walker v. Thompson, 288
1
We understand the District Court’s frivolousness determination to be based on its
conclusion that the McDeavitts’ claims rested on meritless legal theories, not on fanciful
factual allegations. See Ball v. Famiglio, 726 F.3d 448, 462 n.18 (3d Cir. 2013) (noting
“a district court may base its frivolousness determination either on [1] its conclusion that
a claim is based on an indisputably meritless legal theory or [2] on a finding that the
complaint’s factual allegations . . . are clearly baseless, and that we suggest deference
only to the latter” (emphasis added) (internal quotations and citations omitted)), partially
abrogated on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759 (2015).
3
F.3d 1005, 1010 (7th Cir. 2002). When considering whether to dismiss a complaint for
failure to state a claim pursuant to § 1915(e)(2)(B)(ii), the District Court uses the same
standard it employs under Fed. R. Civ. P. 12(b)(6). See Allah, 229 F.3d at 223. “[A]
complaint must contain sufficient factual allegations, taken as true, to ‘state a claim to
relief that is plausible on its face.’” Fleisher v. Standard Ins., 679 F.3d 116, 120 (3d Cir.
2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We accept all
factual allegations in the complaint as true and construe those facts in the light most
favorable to the plaintiff. Id.On appeal, the McDeavitts have failed to make any substantive arguments
challenging the District Court’s determinations. Instead, the McDeavitts argue the
frivolousness standard under § 1915 is “more lenient” than the Rule 12(b)(6) standard,
and further maintain that “[s]ince the IFP was granted, [that] means the Complaint was
not considered frivolous[.]” 2 Appellants’ Br. 2–3. The only argument the McDeavitts
advance to support that they have stated a claim is a single sentence asserting “[t]hey
alleged facts which must be viewed in the light most favorable to them and they certainly
plead enough facts to permit their claim to proceed.” Appellants’ Br. 3. The McDeavitts
do not present arguments contesting the R&R’s determination on the applicability of
Eleventh Amendment immunity or judicial immunity. They do not address the finding
2
We note that a District Court’s IFP grant does not mean that the court has also
determined the underlying complaint is not frivolous; rather, “the general practice in this
Circuit is to grant leave to proceed [IFP] based solely on a showing of indigence.” Gibbs
4
that the parties were not state actors for purposes of § 1983, nor do the point to any facts
supporting a conspiracy claim under § 1985(3). Finally, they do not mention their state
law claims.
Consequently, the McDeavitts have effectively waived any challenge to the
District Court’s rulings on these matters. 3 See Laborers’ Int’l Union of N. Am., AFL-
CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is
waived unless a party raises it in its opening brief, and for those purposes a passing
reference to an issue . . . will not suffice to bring that issue before this court.” (internal
quotation marks omitted)); see also Barna v. Bd. of Sch. Directors of Panther Valley Sch.
Dist., 877 F.3d 136, 145–46 (3d Cir. 2017) (“[W]e have consistently refused to consider
ill-developed arguments or those not properly raised and discussed in the appellate
briefing.”).
Even if we declined to enforce this waiver, we would—for the reasons mentioned
above and thoroughly discussed in the R&R—find no error in the District Court’s
dismissal pursuant to § 1915(e)(2)(B)(i)–(iii). In addition, we are satisfied that any
amendment of the McDeavitts’ complaint would be futile. See Grayson v. Mayview
v. Ryan, 160 F.3d 160, 161 n.1 (3d Cir. 1998) (emphasis added).
3
While we are mindful of the McDeavitts’ pro se status, and although we construe pro se
filings liberally, this policy has not prevented us from applying the waiver doctrine to pro
se appeals. See, e.g., Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002) (per
curiam); Gambino v. Morris, 134 F.3d 156, 161 n.10 (3d Cir. 1998).
5
State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). For the foregoing reasons, we will affirm
the District Court’s judgment.
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