DLD-002 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-2327

___________

ASIA JOHNSON; A.J.,

Appellants

v.

CHILDREN YOUTH AND FAMILIES

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2:18-cv-00444)

District Judge: Honorable Nora Barry Fischer

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect,

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

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

October 4, 2018

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

(Opinion filed: October 19, 2018)

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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.
2

Pro se Appellant Asia Johnson appeals from the District Court’s order dismissing 

her complaint. For the reasons detailed below, we will summarily affirm.

I.

In the District Court, Johnson sought to proceed in forma pauperis (“ifp”) to file a

complaint against the Allegheny County Office of Children Youth and Families (“CYF”)

on behalf of herself and her son. Johnson stated that the basis for jurisdiction in federal 

court was her “Indian status.” Johnson’s complaint, while difficult to decipher, appears

based on a bed bug incident involving her son and her allegation that CYF purportedly 

kidnapped her son. Presumably, the allegations are in connection with parental rights

proceedings in Family Court, although it is unclear if the state court proceedings are 

ongoing. As relief, Johnson requested the return of her son and an award of an 

unspecified amount of damages. 

The District Court denied Johnson’s ifp motion to the extent that she sought to 

bring claims on her son’s behalf. The District Court granted Johnson ifp status as to her 

own claims, and dismissed the complaint sua sponte for lack of subject matter jurisdiction

pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure and for failure to state a 

claim pursuant to 28 U.S.C. § 1915(e).

1 Johnson appeals ifp.2

 

 1 At one point in its decision, the District Court stated that it dismissed all of Johnson’s

claims for lack of subject matter jurisdiction. However, in addition to noting that it was 

also dismissing for failure to state a claim, the District Court considered whether, 

Johnson’s claims, if they were liberally construed to invoke a basis for federal 

jurisdiction, could state a claim.
3

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291.3

 Our review of a dismissal 

under Rule 12(h)(3), which requires dismissal if the court determines that it lacks subject 

matter jurisdiction, is plenary. See SEC v. Infinity Grp. Co., 212 F.3d 180, n.6 (3d Cir. 

2000). Our review of a sua sponte dismissal pursuant to § 1915(e) also is plenary. See

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

III.

The District Court did not err in dismissing Johnson’s complaint. To the extent

that District Court dismissed Johnson’s complaint for lack of subject matter jurisdiction, 

the District Court was correct in its conclusion. Despite Johnson’s assertion that there 

was federal jurisdiction based on her “Indian status,” the District Court properly 

concluded that a party’s ethnicity is not a basis for subject matter jurisdiction. See 28 

U.S.C. § 1331. Furthermore, as the District Court ruled, there was no basis for diversity 

jurisdiction because both parties are citizens of Pennsylvania. See 28 U.S.C. § 1332(a);

 2 This appeal proceeds only as to Johnson’s claims; she may not assert claims on behalf 

of her son. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991) 

(holding that a parent and guardian could not litigate pro se on behalf of his children). 

3 Johnson takes a timely appeal. See Fed. R. Civ. P. 58(a); Fed. R. App. P. 4(a)(1)(A); 

see also LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 223-24 (3d Cir. 

2007). Also, the challenged order, although denominated a dismissal without prejudice, 

was a final order because Johnson could not cure the identified deficiencies without 

affecting her cause of action. See Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d 

Cir. 1976) (per curiam); see also NJ Physicians, Inc. v. President of U.S., 653 F.3d 234, 

241 n.8 (3d Cir. 2011) (explaining that dismissals for lack of jurisdiction are “by 

definition without prejudice”).
4

Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 345-46 (3d Cir. 2013) (explaining 

that § 1332 requires complete diversity, which means that no plaintiff can be a citizen of 

the same state as any of the defendants) (citation and quotation marks omitted). 

Moreover, to the extent Johnson sought to challenge a state-court judgment, that is 

precisely the type of case that a federal court lacks subject matter jurisdiction to consider 

pursuant to the Rooker-Feldman4 doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. 

Corp., 544 U.S. 280, 284 (2005) (explaining that federal courts are precluded from 

exercising jurisdiction over a case brought by state-court losers challenging the statecourt judgments rendered before the District Court proceedings commenced).

To the extent Johnson’s complaint, liberally construed, was an attempt to bring 

forth a federal claim pursuant to 42 U.S.C. § 1983, the District Court was correct in its 

conclusion that Johnson failed to allege that the deprivation of her constitutional rights 

resulted from any official policy or custom of CYF. See Monell v. Dep’t of Soc. Servs., 

436 U.S. 658 (1978); see also Mulholland v. Gov’t Cty. of Berks, Pa., 706 F.3d 227, 239

(3d Cir. 2013) (holding that even if a county agency’s child abuse investigation was 

inadequate, the parents’ § 1983 claim failed where there was no evidence that the agency 

“employ[ed] a policy or ha[d] a custom of conducting desultory investigations”)). 

Additionally, to the extent that Johnson sought relief from federal court regarding 

claims that were pending in state court, the District Court did not err in deciding to 

 4 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Ct. of App. v. Feldman, 460 

U.S. 462 (1983). 
5

abstain pursuant to Younger v. Harris, 437 U.S. 37 (1971). See Acra Turf Club, Ltd. 

Liab. Co. v. Zanzuccki, 748 F.3d 127, 133 (3d Cir. 2014) (noting that if a state’s law does 

not present any procedural barriers to the presentation of the parents’ constitutional 

claims in proceedings to remove children from their home, abstention is warranted (citing 

Moore v. Sims, 442 U.S. 415, 432 (1979))).

Accordingly, for the reasons given, we will summarily affirm the judgment of the 

District Court.