NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-3018

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ORLANDO A. ACOSTA, WRITE IN CANDIDATE REPUBLICAN; 

EDWARD LLOYD, WRITE IN CANDIDATE DEMOCRAT

v.

DEMOCRATIC CITY COMMITTEE; EMILIO VAZQUEZ, 

WARDLEADER/CANDIDATE; CARLOS MATOS, WARDLEADER; ELAINE 

TOMLIN, WARDLEADER; JEWELL WILLIAMS, WARDLEADER; DWAYNE 

LILLEY, WARDLEADER; SHIRLEY GREGORY, WARDLEADER; EL-AMOR 

BROWNE ALI, WARDLEADER; LESLIE ACOSTA, FORMER STATE REP.; MIKE 

TURZAI, STATE REP. SPEAKER OF THE HOUSE; PHILADELPHIA CITY 

COMMISSIONERS & COUNTY OF PHILADELPHIA BOARD OF ELECTIONS; 

SECRETARY COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF 

STATE, BUREAU OF COMMISSIONS, ELECTIONS AND LEGISLATION; 

ANTHONY CLARK, CITY COMMISSIONER; AL SCHMIDT, CITY 

COMMISSIONER; LISA DEELEY, CITY COMMISSIONER; COMMITTEE OF 

SEVENTY

ORLANDO A. ACOSTA,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-17-cv-01462)

District Judge: Honorable Joel H. Slomsky

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 2, 2019

Before: KRAUSE, SCIRICA and NYGAARD, Circuit Judges

(Opinion filed: May 16, 2019)
2

___________

OPINION*

___________

PER CURIAM

Pro se appellant Orlando Acosta appeals the District Court’s order dismissing his 

complaint. For the reasons detailed below, we will affirm the District Court’s judgment. 

This action concerns the March 21, 2017 special election for the Pennsylvania 

State Representative seat for the 197th Legislative District. In his complaint, Acosta 

alleged that he ran as a write-in candidate in the special election. Another candidate, 

Emilio Vasquez, prevailed. In his complaint, Acosta1alleged that the defendants—ward 

leaders, commissioners, politicians, and political organizations—committed “numerous 

significant and material violations of the election law,” ECF No. 11 at 14, including 

coercing voters into voting for Vasquez, allowing unauthorized partisans to assist voters 

in the polling places, turning away voters who opposed Vasquez, and failing to properly

supervise the election. Acosta raised his claims under 42 U.S.C. § 1983.

After Acosta twice amended his complaint, the District Court consolidated 

Acosta’s action with one filed by several other unsuccessful candidates. The defendants 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 Acosta filed his complaint jointly with Edward Lloyd, another unsuccessful write-in 

candidate, but Lloyd is not a party to this appeal. 
3

filed motions to dismiss. In a lengthy opinion, the District Court granted the motions and 

dismissed the complaints. See ECF Nos. 83–84. The Court dismissed the complaints 

without prejudice, and Acosta filed a third amended complaint; the other defendants did 

not re-plead. The District Court again dismissed the complaint, and Acosta filed a timely 

notice of appeal. Acosta has filed several documents in this Court, including a request 

for oral argument. 

We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review. See

Free Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519, 529-30 (3d Cir. 2012). “To survive 

a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

At the outset, we note that we will consider only those issues that Acosta has 

raised in his brief. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler 

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.” (quotation marks, alteration omitted)); Mala v. Crown 

Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se litigants “must 

abide by the same rules that apply to all other litigants”). As the appellees stress, Acosta 

has not challenged the majority of the District Court’s legal rulings in any way.

Each of the claims that Acosta does raise lacks merit. First, contrary to his 

argument, the District Court did not violate his right to a jury trial under the Seventh 
4

Amendment by granting the motions to dismiss. See, e.g., Parklane Hosiery Co. v. 

Shore, 439 U.S. 322, 336 (1979); Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 

631 n.5 (5th Cir. 2014). Next, Acosta contends that because he proceeded in forma 

pauperis, the United States Marshal was required to serve his complaint on defendant the 

Committee of Seventy. But the District Court was nevertheless permitted to dismiss the 

claims against this defendant under 28 U.S.C. § 1915(e)(2)(B) before service of process. 

See generally Deutsch v. United States, 67 F.3d 1080, 1084 n.5 (3d Cir. 1995).2 

Acosta also argues that the District Court should have imposed criminal liability 

on the defendants, but “a private citizen lacks a judicially cognizable interest in the 

prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619

(1973); see also Parkhurst v. Tabor, 569 F.3d 861, 866 (8th Cir. 2009). Further, while 

Acosta contends that counsel for one of the appellees perjured himself by arguing that the 

District Court “should not tinker with state election machinery,” Br. at 3, we are satisfied 

that counsel’s argument falls within the scope of “what is expected in the normal 

adversary process.” King v. First Am. Investigations, Inc., 287 F.3d 91, 96 (2d Cir. 

2002). Finally, there is no merit to his argument that the Eleventh Amendment is 

inapplicable in Pennsylvania. See, e.g. Bradley v. W. Chester Univ. of Pa. State Sys. of 

Higher Educ., 880 F.3d 643, 660 (3d Cir. 2018); Benn v. First Judicial Dist. of Pa., 426 

F.3d 233, 241 (3d Cir. 2005).

 

2 Acosta has not challenged the District Court’s ruling that the Committee of Seventy is 

not a state actor for purposes of § 1983.
5

Accordingly, we will affirm the District Court’s judgment. Acosta’s request for 

oral argument is denied. His motion to present additional evidence, which we construe as 

a request to provide additional legal argument, is granted. To the extent that his other 

filings request additional relief, they are denied.