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BLD-228 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2958

___________

GARY R. DIEFFENBACH,

Appellant

v.

DEPARTMENT OF REVENUE; OFFICE OF INSPECTOR GENERAL; 

EARL CRAGO; MIKE GARMAN; JOE CRAIGWELL; PAUL SLOAD; 

KIMBERLY GLASER; CARRIE FERREE; ALLEN JONES; COLLEEN ALVIANI; 

MOLLY LEACH; THOMAS SCOTT; DONALD PATTERSON; WILBUR HETRICK;

JULIA SHERIDAN; GREGORY FAJT; BRIAN WILLIAMS

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 4-09-cv-00967)

District Judge: Honorable Yvette Kane

____________________________________

Submitted for Possible Summary Action 

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

July 19, 2012

Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

(Opinion filed: July 31, 2012 )

_________

OPINION

_________
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PER CURIAM

Pro se

I.

appellant Gary R. Dieffenbach appeals the District Court’s order dismissing 

defendant Molly Leach pursuant to Fed. R. Civ. P. 4(m) and granting summary judgment 

in favor of all remaining defendants. Because this appeal presents no substantial 

question, we will summarily affirm the District Court’s judgment pursuant to 3d Cir. 

LAR 27.4 and I.O.P. 10.6. 

The instant case arises from Dieffenbach’s complaint bringing assorted claims 

under 42 U.S.C. § 1983 and 42 U.S.C. § 1981 and alleging various defendants’ violations 

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the 

Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. Ann. §§ 951-963. 

Dieffenbach claims defendants retaliated against him for making a statement, and 

testifying, on behalf of a fellow employee in a matter concerning alleged racial 

employment discrimination. Prior to filing this action, he filed an administrative 

complaint, but he failed to include these claims in the administrative complaint. He has

amended his complaint in this case several times but has never served one of the named 

defendants, Molly Leach.

In April 2010, the District Court granted defendants’ motion to dismiss 

Dieffenbach’s Title VII claims against the individual defendants and the Office of 

Inspector General, and his 42 U.S.C. § 1983 claims against all defendants, under Fed. R. 
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Civ. P. 12(b)(6) for failure to state a claim. In October 2010, also pursuant to Rule 

12(b)(6), the District Court granted defendant Paul Sload’s motion to dismiss, dismissing 

him from the case; dismissed the PHRA claims against defendants Earl Crago, Joe 

Craigwell, Greg Fajt, Mike Garman, Kim Glaser, Wilbur Hetrick, Donald Patterson, 

Thomas Scott, and Julia Sheridan; dismissed all claims under 42 U.S.C. § 1981; and 

dismissed the PHRA claims against the Department of Revenue and Office of Inspector 

General. At that point the only claims remaining were alleged violations of Title VII by 

the Department of Revenue and alleged violations of the PHRA by defendants Colleen 

Alviani, Carrie Ferree, Brian Williams, Allen Jones, and Molly Leach. In June 2011, the 

District Court dismissed defendant Leach and granted summary judgment in favor of all 

remaining defendants. Dieffenbach now appeals. 

II.

We have jurisdiction under 28 U.S.C. § 1291. Our review of orders dismissing 

under Rule 12(b)(6) and granting summary judgment is plenary. Phillips v. Cnty. of 

Allegheny, 515 F.3d 224, 230 (3d Cir. 2008) (12(b)(6)); State Auto Prop. & Cas. Ins. Co. 

v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009) (summary judgment). We review the 

dismissal pursuant to Rule 4(m) for abuse of discretion. Boley v. Kaymark

III.

, 123 F.3d 

756, 757 (3d Cir. 1997). We may summarily affirm pursuant to Third Circuit LAR 27.4 

and I.O.P. 10.6 when the appeal presents no substantial question. 
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When considering a motion to dismiss pursuant to Rule 12(b)(6) for failure to state 

a claim upon which relief may be granted, a court must accept as true all material 

allegations, read the complaint in the light most favorable to the plaintiff, and decide 

whether, under any reasonable understanding of the complaint, the plaintiff may be 

entitled to relief. Fleisher v. Standard Ins. Co., 679 F.3d 116 (3d Cir. 2012). To survive 

such a motion, a complaint must include sufficient allegations, taken as true, to state a 

facially plausible claim to relief. Id.

Even after amending his complaint several times, Dieffenbach failed to support his 

claims of ongoing retaliatory harassment with any specific facts alleged to have occurred 

within the statute of limitations, and we agree that this is sufficient reason to grant 

defendants’ motion to dismiss all of Dieffenbach’s Section 1983 claims. 

 

Because a private right of action cannot be implied under 42 U.S.C. § 1981, 

McGovern v. City of Phila.

The dismissal of the PHRA claims against the Department of Revenue and Office 

of Inspector General was proper because they are immune from such claims. 

Pennsylvania has retained its immunity against PHRA claims when they are brought in 

federal court. 42 Pa. Cons. Stat. Ann. § 8521(b). 

, 554 F.3d 114, 115 (3d Cir. 2009), we conclude the District 

Court’s dismissal of Dieffenbach’s Section 1981 claims was also proper. 

We conclude that the District Court’s dismissal of the Title VII claims against the 

individual defendants was proper because under Title VII individual employees cannot be 

held liable. Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 
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1996). We also conclude that the District Court’s dismissal of the Title VII claims 

against the Office of the Inspector General was proper because, under a reasonable 

reading of Dieffenbach’s complaints, he has failed to state any facially plausible claim to 

relief against that office. 

Furthermore, we conclude that the District Court’s dismissal of the PHRA claims 

against defendants Crago, Craigwell, Fajt, Garman, Glaser, Hetrick, Patterson, Scott, and 

Sheridan was proper because we agree that Dieffenbach provided no plausible basis for 

finding that they did anything unlawful within the statute of limitations period. We also 

conclude that dismissal of defendant Sload was proper because we agree that 

Dieffenbach’s bald assertion, absent any accompanying averments, that Sload is at the 

center of an unspecified conspiracy is facially implausible. 

IV.

We next consider the District Court’s June 2011 order granting defendants’ 

motion for summary judgment. We agree with the District Court’s disposition: 

defendants showed there was no genuine dispute as to any material fact with respect to 

Dieffenbach’s failure to exhaust available administrative remedies as required by both 

Title VII of the Civil Rights Act and the PHRA. Burgh v. Borough of Montrose

In support of their contention that Dieffenbach failed to exhaust administrative 

remedies, defendants noted, and Dieffenbach never specifically disputed, that his 

allegations in the instant cause of action are unrelated to those in his administrative 

, 251 

F.3d 465, 469 (3d Cir. 2001). 
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complaint. His administrative complaint alleged that (1) he was retaliated against for 

complaining to supervisors about their failure to discipline younger workers for taking 

extended breaks and (2) he was discriminated against because of his age when he was 

orally warned for returning late from a break while younger workers were not. The 

claims in this case, however, concern retaliation for making a statement in support of, and 

testifying on behalf of, a coworker in an alleged matter of racial discrimination. 

In these circumstances, the bounds of the civil action are defined by the scope of 

the administrative investigation that can reasonably be expected to arise from the 

administrative charges. Atkinson v. Lafayette Coll.

We agree with the District Court that the two sets of allegations do not concern the same 

events, and that the scope of any investigation of Dieffenbach’s administrative complaint 

could not reasonably be expected to include the allegations raised in this cause of action. 

Because he did not include the claims he raises in this case in his administrative 

complaint, he has failed to exhaust administrative remedies for the claims in this case and 

the defendants are entitled to summary judgment. 

, 460 F.3d 447, 453 (3d Cir. 2006). 

V.

Finally, we conclude that the District Court did not abuse its discretion in 

dismissing defendant Leach pursuant to Rule 4(m), which states that if a defendant is not 

served within one hundred twenty days after the complaint is filed, the court must dismiss 

the action without prejudice against that defendant or order that service be made within a 

specified time, but that if plaintiff shows good cause for the failure, the court must extend 
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the time for service as appropriate. On January 12, 2010, the District Court ordered that 

Dieffenbach serve defendant Leach on or before February 9, 2010. Defendant Leach has 

never been served, and Dieffenbach has never shown good cause for this failure. The 

District Court’s dismissal of Leach was therefore not an abuse of discretion. 

VI.

Thus finding no substantial question raised by this appeal, we will summarily 

affirm the judgment of the District Court.