DLD

- 057 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 5

- 2 323

___________ DWAYNE L. RIECO ,

Appellant

v. WILLIAM HEBE, District Attorney; RICHARD MCCOY, Esq.; ANNE MARIE NASEK, Esq. ; LENORE URBANO, Esq.; JENNY FARRER; MICHELE RIGALBUTO; JUDGE ROBERT E. DALTON, JR.

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 4

- 1 2

- cv - 02032 ) District Judge: Honorable Matthew W. Brann

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6.

November 19, 2015 Before: CHAGARES, GREENAWAY, JR. and SLOVITER , Circuit Judge s

(Opinion filed : December 31, 2015 )

_________ OPINION *

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 _________
PER CURIAM Dwayne Rieco is a state prisoner who appeals from the District Court’s orders granting summary judgment to Appellees Urbano, Farrer, and Rigalbuto, and dismissing Rieco’s claims a gainst Appellee s Hebe , McCoy, Nasek and Dalton

. Because this appeal presents no substantial question, we will summarily affirm. Rieco is a sex offender who is curr ently serving a prison sentence at SCI

Pittsburgh

. He is the biological father of TG , with whom he has not had any relationship with since birth. TG’s care and custody ha ve been shared between the Tioga County Department of Human Services (“TCDHS”) and TG’s mother. Beginning in 2010, Rieco sought to begin a relationship with TG by mailing him letters from prison . Rieco also asked that TG be brought to him in prison for visits. TG’s mother , and Appellees Farrer and Rigalbuto, employees of TCDHS, opposed this contact, believing that it would be detrimental to the child. Farrer and Rigalbuto r efused to bring TG to Rieco for visits and declined to deliver his letters to TG. A dditionally, a cting through Appellee William Hebe, an attorney, Farrer and Rigalbuto brought a petition to terminate Rieco’s parental rights to TG in the Court of Common Pl eas of Tioga County. In this state court action, Appellee Urbano participated as a court

- appointed guardian ad litem

. Appellees McCoy and Nasek, public defenders, were appointed by the court to represent Rieco. Judge3

Robert E. Dalton, Jr., presided over the proceeding, and ultimately granted TCDHS’s Petition, terminat ing Rieco’ s parental rights in 2011. Rieco brought an action against Appellees for the roles they played in terminating his parental rights to TG, for refusing to deliver his letters to T G , and for refusing to bring him to Rieco for visitation in prison

. After the Court dismissed his claims against Hebe, McCoy, Nasek and Dalton, the remaining defendants moved for summary judgment. T he Cou rt granted Urbano’s summary judgment motion and Na sek and McCoy ’s motion to dismiss , reasoning that these Appellees were entitled to absolute immunity because they had acted as an integral part of the judicial process in the state proceeding

. The Court dismissed Rieco’s claim against Hebe under the same absolute immunity analysis. The Court granted Dalton ’s
motion to dismiss , because judges enjoy absolute immunity. The Court also granted summary judgment to Farrer and Rigalbuto, reasoning that they were entitled to qualified immunity because Rieco had n ot demonstrated that he had a clearly established right to visitation and correspondence with TG

. Rieco filed a notice of appeal, arguing violations of his substantive and procedural right to due process under the Fourteenth Amendment, and his rights unde r the First and Fourth Amendments. We have jurisdiction over this appeal under 28 U.S.C. § 1291. Because Rieco has been granted in forma pauperis status, we review this appeal for possible dismissal under 28 U.S.C. § 1915(e)(2)(B). Our review of order s dismissing certain defendants and4

granting summary judgment to others is plenary. See McGreevy v. Stroup , 413 F.3d 359, 363 (3d Cir. 2005) (stating standard of review over an order granting summary judgment); Nami v. Fauver , 82 F.3d 63, 65 (3d Cir. 1996) (stating standard of review over dismissal under Federal Rule of Civil Procedure 12(b)(6)). The District Court correctly concluded that Judge Dalton is immune from suit because Rieco sued him for actions he took in his role as a judge

. See Stump v. Spar kman , 435 U.S. 349, 356 (1978) (holding that judges have immunity from suit for judicial acts ). The Court also correctly concluded that McCoy and Nasek are immune from suit because they are public defenders. “ [P] ublic defenders are generally not consider ed state actors for § 1983 purposes when acting in their capacities as attorneys. ”
See Polk County v. Dodson , 454 U.S. 312, 325 (1981)

. The District Court also co rrectly concluded that Urbano enjoys absolute immunity because of her role in Rieco’s state court proceeding as a guardian ad litem

. A guardian ad litem is absolutely immune from § 1983 liability when acting as an “integral part[ ] of the judicial process.” Gardner by Gardner v. Parson , 874 F.2d 131, 146 (3d Cir. 1989) (quoting Briscoe v. LaHue , 460 U.S. 325, 334 (1983)). This includes “ exercising functions such as testifying in court, prosecuting custody or neglect petitions, and making reports and recommendations to the court. ” Id. at 146. Urbano was the court appointed guardian ad litem fo r TG. Rieco sued Urbano for her role in the state court proceeding that ultimately terminated his parental rights. Urbano is therefore immune from his suit.5

As for Appellees Farrer and Rigalbuto, the District Court correctly concluded that they were en titled to qualified immunity . Government officials performing discretionary functions are insulated from suit on qualified immunity grounds where their conduct did not violate a “clearly established statutory of constitutional right[] of which a reasonabl e person would have known.” Pearson v. Callahan , 555 U.S. 223, 231 (2009). The qualified immunity inquiry entails two steps: first, the court must evaluate whether the defendant violated a constitutional right. Saucier v. Katz , 533 U.S. 194, 201

- 02 (200 1). Second, a court must ask whether that right was “clearly established” at the time of the offending conduct. Id. at 232. This inquiry need not be conducted sequentially. Id. at 239

- 40. Inmates have no unfettered constitutional right to visitation f ree of regulation

. Inmates of Allegheny County Jail v. Pierce , 612 F.2d 754, 758 (3d Cir. 1979) (prison officials may limit the nature of inmate visitation). Moreover, Rieco has not demonstrated that he has any affirmative right to have TG’s caregivers b ring TG to Rieco for visitation in prison, nor to have Rieco’s correspondence delivered to TG. Finally, Hebe is also entitled to qualified immunity because as a private attorney who represent ed state actors in their performance of official duties that gra nt them qualified immunity , he is also entitled to such immunity. See Filarsky v. Delia , 132 S. Ct. 1657, 1667 (2012) (holding that attorney who was retained by city to assist in conducting official investigation into firefighter’s potential wrongdoing wa s entitled to6

qualified immunity in firefighter’s § 1983 claim, because official investigation of state employee was activity of the type entitled to qualified immunity).
As this appeal presents no substantial question, we will summarily affirm.