NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 20-2031

___________ TODD SCHUTZEUS, Appellant

v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, in its official capacity;

ROBERTA TROY; RICHARD NOVACK; ST EPHEN T. CUBBERLY, employees

of the Board of Pennsylvania and Parole; PENNSYLVANIA DEPARTMENT OF CORRECTIONS, in its official capac ity; JOHN WETZEL; ROBERT GILMORE, Employees of Pennsylvania Departme nt of Corrections ; TRACEY OHARA; JOE TUTTLE; TRACY SHAWLEY; OF FICER MCCOY; OFFICER JENKINS

___________________ _________________ On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. Civil Action No. 2:17-cv-00412) District Judge: J. Nicholas Ranjan

___________________ _________________ Submitted Pursuant to Th ird Circuit LAR 34.1(a) February 12, 2021 Before: MCKEE, SHWARTZ a nd RESTREPO, Circuit Judges (Opinion filed: January 6, 2022)

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OPINION *

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* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 PER CURIAM Pro se appellant Todd Schutzeus appeal s from the District Court’s grant of summary judgment for defendant s. For the reasons that follow, we will affirm the District Court’s judgment.
I. In 2001, Schutzeus pleaded guilty in the Court of Co mmon Pleas of Allegheny County to rape and related charges involving a minor. He was sentenced to a term of three and a half to seven years’ imprison ment followed by a seven-year term of probation. When the sentenci ng judge recited Schutzeus’s sent ence, he specified that the terms and conditions of Schutze us’s probation were to be se t by the probation office or parole officer. At no point did the sentencing judge order that Schutzeus have no contact with children as a condition of his probation. Schutzeus was released on probation after seven years of imprisonment. After his release, probation officer Tracey O’Hara dr afted a series of conditions for Schutzeus’s probation sentence, including a provision prohibiting Schutzeus fromhaving any contact with minor children in his extended family, including his nieces. Schutzeus signed off on these conditions. Richard No vak subsequently became Sc hutzeus’s probation officer. Several months later, the probation office di scovered that Schutzeus had had contact with his minor nieces. Novak and supervisor Steven Cubberly drafted and signed a “special field report” regarding Schutzeus, which recommended adding several requirements to3 his probation term, including that he have no contact with any minor under the age of 18. The report was submitted to the trial court and approved by the trial judge. Novak interviewed Schutzeus, who acknowledged that he had seen his nieces, and another supervisor, Roberta Troy, reco mmended arresting Schutzeus. Novak subsequently arrested Schutzeus for violating the condition in the special field report that he not be in contact with minors. At a May 2007 violation of probation hearing, Schutzeus stated that he had violated a requi rement of his probati on. His probation was revoked, and he was sentenced to a term of up to 50 years’ incarceration. After Schutzeus successfully appeal ed his sentence and subseq uent resentencing, he was ultimately resentenced to 13 years’ imprisonment. Schutzeus then sought post-conviction relief for ineffective assistance of counsel. The Superior Court concluded th at Schutzeus had not violated any term of his probation because the trial court did not originally impose a “no cont act with minors” condition. Although probation conditions were proposed to the trial court in the special field report, a state statute required a judge to impose probation conditions; that responsibility could not be delegated to probatio n officers. The Superior Court vacated Schutzeus’s revocation sentence, and, on remand in 2016, the trial court released Schutzeus from custody. Schutzeus ultimately se rved 9 years in prison for violating of a term of his probation that had never been lawfully imposed. Schutzeus filed a complaint in the Distri ct Court in 2017, bringing federal and4 state claims against a variety of defendants. In his second am ended complaint, the operative complaint, Schutzeus named the Pe nnsylvania Board of Probation and Parole, and probation office employees O’Hara, Novak, Cubberly, and Troy as defendants. 1 He raised federal conspiracy and Fourth Am endment false arrest claims against the individual defendants. Among his other claims , he included state law claims of malicious prosecution and intentional infliction of em otional distress against all defendants, and state law claims of false imprisonment and abuse of process against Troy, Cubberly, and Novak. The parties filed cr oss-motions for summary judgment, which the District Court granted for defendants and denied for Schutzeus. Schutzeus timely appealed.
II. We have jurisdiction over this appeal pur suant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of summary judgment for defendants. 2 See Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is appropriately granted “if the mo vant shows that there is no genuine dispute as to any material fact and th e movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine disput e of material fact exists if the evidence is sufficient for a reasonable factfinder to return a verdict for the nonmoving party. Anderson v. Liberty

1 Schutzeus submitted two vers ions of his second amended complaint, and the District Court, after granting leave to amend, consid ered the amendment to include all of the claims raised in both documents.

2 Schutzeus does not challenge the District Court’s denial of his motion for summary judgment in his appellate brief, forfeiting an y challenge to that decision. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).5 Lobby, Inc., 477 U.S. 242, 248 (1986).
III. We agree with the District Court’s gr ant of summary judgment for defendants. 3 First, as defendants argued, the record contai ned no evidence of a conspiracy under 42 U.S.C. § 1983. “To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law ‘r eached an understanding’ to deprive him of his constitutional rights.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (citation omitted). At his deposition, Sc hutzeus testified that he had named Troy and Cubberly as defendants so lely because of their positions, that he had named O’Hara because she had imposed cond itions on his probation based on the sentencing judge’s command, and that he had name d Novak because Novak had a rrested him and had helped

3 Schutzeus does not challenge the Distri ct Court’s rulings on all his claims. Specifically, Schutzeus raised a claim in his complaint pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), against th e Board, as well as claims against the individual defendants that he was denied due process under the Fifth and Fourteenth Amendments at his original sentencing he aring where the judge improperly delegated setting his probation terms to a probation offi cer. He also alleged violations of the Pennsylvania Constitution. Because Schutzeus does not address these claims in his appellate brief, we deem any challenge to the grant of summary judgment on these claims forfeited. See Pelullo, 399 F.3d at 222. We note, however, that the District Court properly concluded that Schutzeus never iden tified any policy or custom that resulted in any alleged constitutional violation such that his claim could surviv e summary judgment. See Monell, 436 U.S. at 690-92; see also Beck v. City of Pittsburgh , 89 F.3d 966, 971 (3d Cir. 1996). Further, no individual defendant in this case had any pe rsonal involvement in his initial sentencing hearing. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Finally, Pennsylvania does not recogniz e a private right of action for damages for violations of its constitution. See Jones v. Ci ty of Philadelphia, 890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006) (“[N]either Pennsylvania st atutory authority nor appellate case law has authorized the award of money dama ges for violation of the Pennsylvania Constitution.”).6 prepare the special field repo rt. These actions do not demonstrate that any set of defendants “reached an underst anding” to deprive Schutzeus of his constitutional rights. Schutzeus’s speculation and continued insistence to the contrary is not sufficient to show that summary judgment was not warranted wh ere the record contains no evidence of a conspiracy. The District Court also correctly gran ted summary judgment for the individual defendants on Schutzeus’s claims of false ar rest under the Fourth Amendment because he could not establish that a cons titutional violati on had occurred. 4 “To state a claim for false arrest under the Fourth Am endment, a plaintiff must esta blish: (1) that there was an arrest; and (2) that the arrest was made w ithout probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012); see also Groman v. Twp. of Manalapan,

4 In addition to claims for damages, in his operative compla int, Schutzeus sought injunctive and declaratory relief. Specifica lly, he sought an in junction to enjoin defendants from a “practice of adding extra judi cial criminal sanctions upon probationers and parolees,” and a declaration that defe ndants’ conduct violat ed his constitutional rights. See Second Am. Compl. at ECF p. 11. It is not clear from Schutzeus’s appellate brief if he continues to pursue prospective re lief. However, even if he does, Schutzeus is not entitled to either form of relief. As the District Court concluded, Schutzeus has never identified an existing policy by the Board of imposing conditio ns of probation that could be enjoined. See McNair v. Synapse Gr p. Inc., 672 F.3d 213, 223 (3d Cir. 2012) (“When . . . prospective relief is sought, the plai ntiff must show that he is ‘likely to suffer future injury’ from the defendant’s conduc t.”) (citation omitted). His request for declaratory relief fails for similar reasons. The conditions of Sc hutzeus’s probation expired before this action wa s initiated when his probati onary period ended. See Commonwealth v. Karth, 994 A.2d 606, 610 (Pa. Super. Ct. 2010) (“Once [a] term of probation expires, so, too, must any conditi ons attached thereto.”). Accordingly, and because the record does not co ntain evidence to support any likelihood of a future injury to Schutzeus based on the constitutional viola tions he has claimed, he cannot receive declaratory relief. See Already, LLC v. Nike, Inc., 568 U.S. 85, 98 (2013).7 47 F.3d 628, 636 (3d Cir. 1995) (“A false im prisonment claim under § 1983 which is based on an arrest made without probable ca use is grounded in the Fourth Amendment's guarantee against unreasonable seizures.”). Pr obable cause determinations are informed by analyzing the totality of the circumstances . Illinois v. Gates, 462 U.S. 213, 238 (1983). Schutzeus argues that his arrest for viol ating his probation c ould not have been supported by proba ble cause because, on collateral revi ew, the Superior Court ultimately determined that the basis for his probation vi olation was not an enforceable term of his probation. However, “[w]hether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” See Devenpeck v. Alford, 543 U. S. 146, 152 (2004). When Schutzeus was sentenced, the sentencing judge specifically indi cated that the terms and conditions of his probation were to be set by the probation office or his probation officer. He was subsequently found to be a se xually violent predator after a Megan’s Law hearing. After he was released from prison, O’Hara gave Sc hutzeus a series of probation conditions to which he agreed in writing, including a pr ovision preventing him from seeing his minor nieces. Novak ultimately arrested Schutzeus after Schutzeus admitted to Novak that he had seen his nieces, and at his vi olation of probation hearing, Schutzeus st ated that he had violated a term of his probation. The Supe rior Court repeatedly reviewed Schutzeus’s direct appeals from his probation violation se ntence without noticing any issue with the8 terms of his probation, even when discussi ng the no-contact provision that was later deemed invalid. See Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. Ct. 2012); see also Heien v. North Carolina, 574 U.S. 54 , 66 (2014) (explaining that “[t]he Fourth Amendment tolerates. . . objectively reasonable” mistakes). C onsidering the totality of the circumstances here, probable cause existed for Schutzeus’s arrest such that he cannot establish a Fourth Amendmen t false arrest claim against any individual defendant. Next, as the District Court properly conc luded, Schutzeus’s state law claims for damages against the Board and the individual defenda nts in their official capacities are barred by Eleventh Amendmen t immunity. Eleventh Amen dment immunity protects a state or a state agency from suit unless Congress has specific ally abrogated the state’s immunity or the state has waived its immuni ty. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 120-21 (1984); Karns v. Shanahan, 879 F.3d 504, 513 (3d Cir. 2018); see also Fitchik v. N.J. Trans it Rail Operations, Inc., 873 F.2d 655, 658 (3d Cir. 1989) (“A state agency is entitled to immunity from suit in a federal court under the eleventh amendment wh en a judgment against it would have had essentially the same practical consequences as a judgment agains t the State itself.”) (citation and internal quotation marks omitted). Schutzeus does not a ddress his claims against the Board in his appellate brief, and he has identified no waiver of immunity that may be applicable in this

case. 5

5 Further, “§ 1367(a)’s grant of jurisd iction does not extend to claims against nonconsenting state defendants.” Raygor v. Regents of Univ . of Minn., 534 U.S. 533, 542 (2002).9 The District Court also correctly concl uded that Schutzeus’s remaining state law claims against the individual defendants were barred by immunity pursuant to 1 Pa. Cons. Stat. § 2310, as defendants affirmativel y asserted. Under that provision, the Commonwealth and its officials and employees acting within the scope of their duties are immune from lawsuits except in specified situ ations, see 42 Pa. Cons . Stat. § 8522, none of which is applicable here. Under the facts of this case, the actions taken by the individual defendants fell within the scope of their employment as pr obation office employees. Pennsylvania law provides that an employee’s action falls with in the scope of employ ment if it: (1) is the kind that an employee is employed to pe rform; (2) occurs subs tantially within the authorized time and space limits of the employee’ s job; and (3) is motivated at least in part by a purpose to serve th e employer; and (4) if force was intentionally used by the employee against another, the use of force wa s not unexpectable by the employer. See Restatement (Second) of Agency § 228; Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (“Pennsylvania has accepted the Restatem ent (Second) of Agency’s definition of conduct ‘within the scope of employment.’”) (citation omitted). Here, the individual defendants’ actions c onsisted of typical actions taken by a probation officer or supervisor: (1) preparin g and submitting documents such as a special field report, a violation report, and an arre st report, on probati on office forms; (2) advising the state trial court on terms of probation; (3) supervis ing those terms; (4)10 arresting a defendant for violating a term of probation; and (5) partic ipating in a hearing to enforce that term. See, e.g., 61 Pa. Cons . Stat. §§ 6133 (providi ng the Board with the “exclusive power to supervise any person pla ced on probation by any judge of a court having criminal jurisdiction, when the court by special order directs supervision by the board”); 6138(b)(1) (providing that the “forma l filing of a charge after parole against a parolee within for any viola tion of the laws of this Co mmonwealth shall constitute an automatic detainer and permit the parolee to be taken into and held in custody”); 6152 (authorizing parole officers to arrest without a warrant a parolee for violating parole conditions); 6153 (explaining th e contours of the “supervisory relationship” of probation officers “with their offenders”). As the Distri ct Court observed, parole officers are state employees who serve the courts under the direction of their common employer, the Commonwealth government. See Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193, 198 (3d Cir. 2008) (“Pennsylvania’s j udicial districts, including their probation and parole departments, . . . . are part of the Commonwealth government rather than local entities.”). Schutzeus argues that because the Superior Court ruled that his sentencing judge had no authority to order a pr obation officer to set any cond itions of his probation, the individual defendants could not have been wo rking within the scope of their employment when the special field report was prepared in what he alleges was “an illicit scheme to cover for . . . O’Hara’s imposition of a term of probation.” See Appellant’s Br. at p. 22.11 There is no evidence in the r ecord to support Schutzeus’s th eory that Novak, Troy, and Cubberly took any action to “cover for” O’Hara’s imposition of terms of Schutzeus’s probation that the sentencing court mistakenly delegated. “Under Pennsylvania law, even unauthorized acts may be within the scope of employment ‘if they are clearly incidental to the master’s business.’” See Brumfield, 232 F.3d at 381 (citation omitted). As the District Court explained in further detail, the sentencing court’s lack of statutory authority to delegate the setti ng of any of Schutzeus’s terms of probation does not negate the fact that all defendants act ed within the scope of their duties as probation officers in enacting the sentencing court’s explicit delegati on, even if their acts were unauthorized by statute. We recognize that Schutzeus was greatly wro nged by having to serve nine years in prison for violating a term of his probation that was never lawfully enacted. However, as the District Court acknowledged, no remedy lie s in the claims he has pursued in this action against these defendants. Accordingly, for the reasons above, we will affirm the judgment of the District Court