2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-27-2012

Elizabeth Harvey;v. Peter Loftus

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3300

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Elizabeth Harvey;v. Peter Loftus" (2012). 2012 Decisions. Paper 120.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/120
GLD-012 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3300

___________

ELIZABETH HARVEY,

Appellant

v.

PETER G. LOFTUS; C. KENT PRICE, Esquire; 

JUDGE M. MUNLEY, in his official and individual capacities; 

RAMANI AYER, Chairman and Chief Executive Officer; 

HARFORD INSURANCE CO.

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-10-cv-02505)

District Judge: Honorable C. Darnell Jones, II

____________________________________

Submitted for Possible Summary Action 

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

October 12, 2012

Before: FUENTES, FISHER and ROTH, Circuit Judges

(Opinion filed: November 27, 2012)

_________

OPINION

_________
2

PER CURIAM

Elizabeth Harvey, proceeding pro se, appeals an order from the United States 

District Court for the Middle District of Pennsylvania dismissing her complaint and an 

order denying her motion to reconsider that dismissal. Because this appeal presents no 

substantial question, we will summarily affirm the judgment of the District Court. 

I.

In December 2010, Harvey filed a complaint in the District Court that she 

amended in March 2011, broadly asserting three claims against Ramani Ayer, Peter 

Loftus, Judge James M. Munley, Kent Price, and Does 1-5. The claims and defendants 

were related to a separate civil case Harvey was pursuing. The first claim was a 

malpractice claim against Loftus, Harvey’s attorney in the civil case, alleging that he 

failed in his professional obligations to Harvey and thereby violated her constitutional 

rights to due process and equal protection. Harvey next claimed that Ayer, Loftus, Judge 

Munley, and Price conspired to have Harvey accept a settlement offer so that Judge 

Munley could take a vacation rather than preside over her trial, and when she refused to 

settle the trial was sabotaged. Harvey finally claimed that the defendants deprived her of 

her constitutional rights and caused her severe emotional distress for which she sought 

relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 

U.S. 388 (1977). 

All named defendants filed motions to dismiss, and, on May 23, 2012, Harvey 

responded and waived objection to dismissal of the claims against Ayer and Price. 
3

Harvey’s response to the motions to dismiss did not provide additional factual 

allegations. 

On June 8, 2012, the District Court, pursuant to Federal Rule of Civil Procedure 

12(b)(6), dismissed the complaint with prejudice as to the second and third claims; it

dismissed the first claim as a pendent state law claim over which it did not have 

supplemental jurisdiction. Harvey filed a “Motion for Extension of Time To For a 30 

Days Extension of Time to Respond to and/or Seek Further Consideration of Court’s 

6/7/2012 Order Dismissing This Action” on June 18, 2012. Harvey’s motion generally 

requested (1) a thirty day extension “to seek further consideration of the Court’s action” 

and potentially “file a Second Amended Complaint” and (2), in the alternative, relief 

from the order pursuant to Federal Rule of Civil Procedure 60(b)(3) “[o]r any other 

applicable rule under F.R.C.P.” The motion’s basis for an extension of time was a flulike illness that Harvey suffered. In regard to the request for relief under Rule 60(b)(3), 

the motion broadly accused the District Court of favoring the defendants, prejudicing 

Harvey, and potentially acting with “impermissable [sic] motive.” 

On June 19, 2012, the District Court denied Harvey’s motion, without 

characterizing it, but the District Court did note its unpersuasiveness. Harvey filed a 

notice of appeal on August 14, 2012, specifically challenging the District Court’s order

denying the motion. On appeal, Harvey generally alleges that fraud tainted the 
4

proceedings in the District Court and that the District Court “completely ignored” facts 

for the purpose of “concealment or non-disclosure of a material fact.”1

II.

We have jurisdiction over this appeal under 28 U.S.C. § 1291, and we may affirm 

on any grounds supported by the record. See Hughes v. Long, 242 F.3d 121, 121 n.1 (3d 

Cir. 2001). Although the notice of appeal only referenced the denial of Harvey’s Rule 

60(b) motion, we construe it liberally to encompass both orders.2 See Ghana v. Holland, 

226 F.3d 175, 180 (3d Cir. 2000).

Our review of the District Court’s grant of Loftus and Judge Munley’s motions to 

dismiss is de novo. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). In 

order to survive dismissal a complaint must contain sufficient factual matter, accepted as 

 

1

 Harvey’s response to the Clerk’s notice of possible summary affirmance raised 

concerns regarding whether this Court received the record from the District Court. The 

District Court record was made available electronically to this Court on August 17, 2012. 

Notice was electronically mailed to all defendants, but notice was not sent to Harvey. In 

deciding this matter we reviewed the District Court’s record and Harvey’s response to the 

notice of potential summary affirmance. 

2 Ordinarily, when a United States officer, such as Judge Munley, is sued in an official 

capacity, an appeal must be filed within sixty days of the appealed order or judgment. 

Fed. R. App. P. 4(a)(1)(B). However, when a party files a timely motion under Federal 

Rule of Civil Procedure 60 within twenty-eight days after judgment is entered, the time to 

file an appeal is tolled until the date of the District Court’s disposition of the postjudgment motion. Fed. R. App. P. 4(a)(4)(A); see also Long v. Atlantic City Police 

Dep’t, 670 F.3d 436, 440 (3d Cir. 2012). In this case, Harvey filed her Rule 60 motion 

on June 18, 2012, ten days after the June 8th order dismissing the case, thereby tolling the 

appeal period until “the entry of the order disposing of” the motion. Fed. R. App. P. 

4(a)(4)(A). The district court denied Harvey’s motion on June 19, 2012, at which time 

the sixty-day appeal period began running. Harvey’s notice of appeal was therefore 

timely filed on August 14, 2012, within sixty days of the District Court’s June 19th order. 
5

true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007). The plausibility standard “asks for more than a sheer 

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). A claim is plausible on its face “when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. We review the denial of a Rule 60(b)(3) motion for abuse of 

discretion. Budget Blinds of NJ, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008); 

Lorenzo v. Griffith, 12 F.3d 23, 26 (3d Cir. 1993). We may summarily affirm if the 

appeal presents no substantial questions. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. 

III.

Harvey alleged that Judge Munley made critical comments during a settlement 

conference and read jury instructions improperly in furtherance of a conspiracy to punish 

Harvey for not accepting a settlement offer. All of the allegations against Judge Munley 

concerned acts taken in his judicial capacity and in a matter over which he had 

jurisdiction. Absolute judicial immunity shields judges from liability for such acts. 

Cleavinger v. Saxner, 474 U.S 193, 199 (1985). Judicial immunity attaches even if the 

act was done in furtherance of a conspiracy. Dennis v. Sparks, 449 U.S. 24, 26-27

(1980). Thus, Judge Munley is entitled to absolute judicial immunity for Harvey’s 

conspiracy claim. Judge Munley is likewise entitled to absolute judicial immunity for 

Harvey’s Bivens claim. See Gallas v. Sup. Ct. of Pa., 211 F.3d 760, 768 (3d Cir. 2000) 

(“The Supreme Court long has recognized that judges are immune from suit under 
6

section 1983 for monetary damages arising from their judicial acts.”). Accordingly, the 

District Court correctly dismissed all claims against him with prejudice. 

IV.

The District Court’s dismissal of the conspiracy claim against Loftus was 

appropriate because Harvey’s allegations and the reasonable inferences they supported 

failed to state a conspiracy claim. See Iqbal, 556 U.S. at 678; see also Young v. Kann, 

926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (“[I]t is a longstanding rule in the Third Circuit 

that a mere general allegation . . . of conspiracy or collusion without alleging the facts 

which constituted such conspiracy or collusion is a conclusion of law and is insufficient 

[to state a claim].” (alteration in original) (quoting Kalmanovitz v. G. Heileman Brewing 

Co., Inc., 595 F.Supp. 1385, 1400 (D.Del. 1984), aff’d, 769 F.2d 152 (3d Cir. 1985)). As 

the District Court correctly determined, Harvey’s complaint did not rise above general 

allegations and conjecture. Because Harvey’s complaint failed to provide sufficient 

factual allegations to support an inference of agreement between the defendants, we agree 

with the District Court’s dismissal of Harvey’s conspiracy claim against Loftus with 

prejudice.

3

 

3

In her response to the motions to dismiss, Harvey argued that her complaint satisfied the 

fair notice pleading standard of Conley v. Gibson, 355 U.S. 41 (1957). That standard was 

abrogated by and replaced with the plausibility standard of pleading in Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544 (2007).
7

Harvey sought damages under a Bivens action against Loftus for emotional 

distress suffered as a result of the alleged conspiracy. The Bivens action relied on the 

improperly pled conspiracy claim, thus it is also insufficient. We therefore affirm the 

District Court’s dismissal of the Bivens action against Loftus with prejudice.

4

 See

Hughes, 242 F.3d at 121 n.1.

Finally, we concur in the District Court’s decision to not exercise supplemental 

jurisdiction over the state law malpractice claim against Loftus. 28 U.S.C. § 1367(c)(3); 

see Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). 

V.

Harvey requested relief under Rule 60(b)(3) from the dismissal of her complaint. 

In order to prevail on a Rule 60(b)(3) motion, the moving party “must establish that the 

adverse party engaged in fraud or other misconduct and that the misconduct prevented 

the moving party from fully and fairly presenting his case.” Stridiron v. Stridiron, 698 

F.2d 204, 206-07 (3d Cir. 1983). Harvey’s 60(b)(3) motion did not allege fraud or 

misconduct against the defendants; rather, she alleged misconduct on the part of the 

District Court.

 

4

The District Court dismissed the Bivens action against Loftus as brought outside the 

two-year statute of limitations. The duration of the alleged conspiracy is unclear and we 

are not convinced that this claim should have been dismissed for violating a statute of 

limitations. Regardless, any error was harmless because the complaint failed to state a 

claim upon which relief can be granted. See McDonough Power Equip. v. Greenwood, 

464 U.S. 548, 553-54 (1984); Rose v. Bartle, 871 F.2d 331, 342-43 (3d Cir. 1989).
8

Alleged misconduct of the District Court may be remedied by a motion pursuant 

to Rule 60(b)(6) “in extraordinary circumstances where, without such relief, an extreme 

and unexpected hardship would occur.” Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d 

Cir. 1993); see also Morris v. Horn, 187 F.3d 333, 341 (3d Cir. 1999). Harvey’s motion 

made no concrete allegations of misconduct, and primarily addressed the District Court’s 

rulings that were adverse to her. Accordingly, because Harvey did not allege any fraud 

perpetrated by an adverse party and did not demonstrate extraordinary circumstances or 

extreme hardship caused by the District Court, there was no basis for relief under Rule 

60(b).

VI.

For the foregoing reasons, this appeal presents no substantial question and we will 

summarily affirm.