NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-1305

___________

STEPHEN UKO UDOH,

Appellant

v.

GLENN FERGUSON; ELIZABETH HOGAN; 

TONI-LYNNE CALABRESE; ED MCGOWAN; 

PENELOPE MAUER; NYDIA SANTOS; 

PATRICIA FOUNDOS; ANN KLEIN FORENSIC CENTER

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3-13-cv-07490)

District Judge: Honorable Freda L. Wolfson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 24, 2018

Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

(Opinion filed October 26, 2018)

___________

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

Stephen Uko Udoh appeals from an order of the United States District Court for 

the District of New Jersey, which dismissed certain claims in his civil rights complaint 

for lack of subject matter jurisdiction, under Fed. R. Civ. P. 12(b)(1), and dismissed the 

remaining claims for failure to state a claim upon which relief could be granted, pursuant 

to Fed. R. Civ. P. 12(b)(6). We will affirm the District Court’s judgment.

In December 2013, Udoh filed a pro se complaint complaining that the named 

Defendants1 violated his constitutional rights and committed professional malpractice by 

detaining him at the Ann Klein Forensic Center between January 2012 and May 2013. 

He later amended that complaint to allege (without further explanation) that the 

Defendants unlawfully incarcerated him “even after Plaintiff was cleared twice by the 

IMAR-medication court to be transferred back to jail,” and that they “conspired against 

Plaintiff” by saying that he “was sending a threatening letters to Judge Rubin without no 

proof of evidence to show.” Dkt. #4 at 1. The complaint sought $15 billion in damages.

The Defendants filed a motion to dismiss. The District Court dismissed with 

prejudice claims against the Ann Klein Center and against the Individual Defendants in 

their official capacities under the Eleventh Amendment, determining that the Court 

lacked jurisdiction to consider those claims. See Fed. R. Civ. P. 12(b)(1). As to Udoh’s 

claims against the Individual Defendants in their individual capacities, the Court 

 

1 Although he named several Defendants, he did not explain who they were. Apparently, 

they were affiliated with the Ann Klein Forensic Center, which was also named as a 

Defendant.
3

dismissed those claims under Fed. R. Civ. P. 12(b)(6) without prejudice to Udoh’s filing 

of an amended complaint within 30 days. Udoh filed a timely notice of appeal, including

a written notation that he would not amend his complaint.

We have jurisdiction under 28 U.S.C. § 1291.2 We exercise plenary review over 

the District Court’s dismissal of the complaint under Rules 12(b)(1) and 12(b)(6). See

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

has given us nothing to review—his opening brief does not meaningfully challenge the 

District Court’s determination that the Eleventh Amendment barred his suit against the 

Ann Klein Center and against the Individual Defendants in their official capacities, nor 

the Court’s determination that he failed to state a claim as to the Defendants in their 

individual capacities. He has therefore waived any review of those determinations.3 See

 

2 Although some of Udoh’s claims were dismissed without prejudice to amendment, “a 

dismissal with leave to amend will be treated as a final order if the plaintiff [as here] has 

elected to ‘stand upon the original complaint.’” Frederico v. Home Depot, 507 F.3d 188, 

192 (3d Cir. 2007) (citation omitted).

3

In any event, if we were to review the rulings, we would discern no error in those 

determinations. The Ann Klein Forensic Center is a facility of the State of New Jersey. 

See N.J. Stat. Ann. § 30:1-7; cf. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 255 

(3d Cir. 2010) (determining that a center for youths who had been adjudicated delinquent, 

which was “an administrative agency without existence apart from the Commonwealth,” 

was entitled to Eleventh Amendment immunity). For that reason, we would conclude 

that the District Court properly dismissed claims against the Center and against the 

Individual Defendants in their official capacities. We would further conclude that the 

District Court properly dismissed claims against the Individual Defendants for failure to 

state a claim, as Udoh’s complaint was devoid of any information that would indicate the 

named individuals participated in denying him his civil rights. See Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (explaining that a complaint requires “more than an unadorned, thedefendant-unlawfully-harmed-me accusation” to survive a motion to dismiss).
4

United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006) (“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.”) (citation and quotation 

marks omitted).4

For the foregoing reasons, we will affirm the District Court’s judgment.5

 

4 We may excuse waiver in “extraordinary circumstances,” but such circumstances are 

not present here. See United States v. Albertson, 645 F.3d 191, 195 (3d Cir. 2011) 

(noting that one factor to consider in excusing waiver is “whether failing to consider the 

argument would lead to a miscarriage of justice”) (citation and quotation marks omitted).

5 The wholly conclusory allegations of Udoh’s brief—that his complaint should have 

been transferred because everybody in the Trenton court is racist—are baseless and do 

not merit our review.