DLD-082 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-2806

___________

AARON J. BRESSI,

Appellant

v.

JOHN GEMBIC; MICHAEL P. TOOMEY; PETER KAY; VINNY CLAUSI

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. Civil No. 4:17-cv-01405)

District Judge: Honorable Matthew W. Brann

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

January 24, 2019

Before: JORDAN, GREENAWAY, JR. and NYGAARD, Circuit Judges

(Opinion filed February 8, 2019)

_________

OPINION*

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PER CURIAM

Pro se appellant Aaron Bressi, proceeding in forma pauperis, appeals from the 

District Court’s dismissal of his claims against numerous defendants in a civil rights 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
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action he brought pursuant to 42 U.S.C. § 1983. For the reasons that follow, we will 

summarily affirm the District Court’s judgment.

Bressi alleges that his civil rights were violated in the course of several criminal 

proceedings in state court in 2013, 2015, and 2016. Bressi has brought claims against:

1) John Gembic, the magisterial district judge who presided over his cases; 2) Michael 

Toomey, the assistant district attorney who was the prosecutor in those cases; 3) Peter 

Kay, Bressi’s public defender; and 4) Vinny Clausi, Bressi’s former employer.

Bressi alleges that Toomey fabricated the charges brought against him in 2013, 

and maintains that some of those charges were based on false reports by Clausi. He 

contends that he was pressured into pleading guilty by Toomey and Judge Gembic in 

2013. In 2015, Kay advised Bressi to take a plea deal in a criminal matter which was

presided over by Judge Gembic and prosecuted by Toomey. Kay also allegedly failed to 

file certain pretrial motions that Bressi wanted him to file in his 2016 criminal matter.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise 

plenary review over the District Court’s dismissal of Bressi’s complaint. See Allah v. 

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e review the District Court’s denial of 

leave to amend for abuse of discretion, and review de novo its determination that 

amendment would be futile.” See U.S. ex rel. Schumann v. AstraZeneca Pharm. L.P., 

769 F.3d 837, 849 (3d Cir. 2014). We may summarily affirm a district court’s decision 

“on any basis supported by the record” if the appeal fails to present a substantial question. 

See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
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All of Bressi’s claims were properly dismissed with prejudice. First, Bressi’s 

claims based on his 2013 convictions — including all of his claims against Clausi — are 

time-barred. “A section 1983 claim is characterized as a personal-injury claim and thus

is governed by the applicable state’s statute of limitations for personal-injury claims.” 

Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010). “The statute of limitations 

for a § 1983 claim arising in Pennsylvania is two years.” Kach v. Hose, 589 F.3d 626, 

634 (3d Cir. 2009); see 42 Pa. Cons. Stat. § 5524(2). Claims may be dismissed based on 

“a limitations defense if the face of the complaint demonstrates that the plaintiff’s claims 

are untimely.” Stephens v. Clash, 796 F.3d 281, 288 (3d Cir. 2015) (internal quotation 

marks omitted).

Bressi filed his complaint in 2017; his first criminal proceedings were resolved by 

July 2013. Bressi’s allegations against Toomey and Judge Gembic from 2013 are not 

connected to his later allegations, and he does not suggest Clausi’s involvement with any 

of his criminal matters after 2013. Accordingly, the District Court properly dismissed all 

of Bressi’s claims based on his 2013 criminal proceedings as time-barred.

Next, Kay is not a state actor against whom Bressi can bring § 1983 claims under 

these circumstances. Public defenders do not act under color of state law when they 

“perform[] a lawyer’s traditional functions as counsel to a defendant in a criminal 

proceeding. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Bressi’s allegations 
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could not establish that Kay acted outside of that capacity. Thus, Bressi’s claims against 

Kay were also correctly dismissed.

Finally, Toomey and Judge Gembic are entitled to absolute immunity from 

liability on Bressi’s remaining claims against them. Bressi has alleged that Toomey 

somehow violated his civil rights by bringing criminal charges against him in 2015 and 

2016. Similarly, Bressi claims that Judge Gembic violated his civil rights in the course of 

presiding over his criminal matters. However, “acts undertaken by a prosecutor in 

preparing for the initiation of judicial proceedings or for trial, and which occur in the 

course of his role as an advocate for the State, are entitled to the protections of absolute 

immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Additionally, “[a]

judicial officer in the performance of his duties has absolute immunity from suit and will 

not be liable for his judicial acts.” Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) 

(per curiam). A judge “will be subject to liability only when he has acted in the clear 

absence of all jurisdiction.” Id. (internal quotation marks omitted). Because Bressi’s 

allegations indicate that Toomey and Judge Gembic acted entirely within the scope of 

their respective positions, Bressi’s claims against them are barred by absolute immunity.

Bressi’s numerous attempts to amend his complaint indicate that he wishes to 

bring additional legal claims against these defendants but have not clarified any of his 

factual allegations. Under these circumstances, the District Court correctly determined 

that granting Bressi leave to amend would have been futile. See Schumann, 769 F.3d at

849. Accordingly, we will summarily affirm the judgment of the District Court.