2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 012 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 capaci ties; 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: H onorable 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 M iddle District of Pennsylvania dismissing her complaint and an order denying he r motion to reconsider that dismissal . Because this appeal present s 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 Mar ch 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 Loftu s , 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, Lo ftus, Judge Munley , and Price c onspired to have Harvey ac cept a settlement offer so that Judge Munley could take a vacation rather than preside over her trial , and when s he refused to settle the trial was sabotaged. Harvey finally claimed th at the defendants deprived her of her constit utional 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, Harve y responded and w aived 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 Proce dure 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 acti on” 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 flu

like 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 Ju ne 19, 2012, t he District Court denied Har vey’s motion , w ithout characterizing it , but the District Court did note its unpersuasiveness

. Harvey filed a notice of appeal on August 14, 2012 , specifically challengin g the District Court’s order denying the mo tion

. On appeal, Harvey generally alleges that fraud tainted the4

pr oceedings 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 ove r 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. 200 0 ). Our review of the District Court’s grant of Loftus and Judge Munley’s motion s to dismiss is de novo

. Phillips v. Cnty. of Allegheny , 515 F.3d 224, 230 (3d Ci r. 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 w hether 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 decidi ng 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 s ixty 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 t he date of the District Court’s disposition of the post

judgment 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 a fter 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 app eal 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 “as ks 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 t hat 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 furthe rance of a conspiracy to punish Harvey for not accepting a settlement offer. A ll 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 judg es 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 absolu te 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 ju dges are immune from suit under6

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 d ismissal of the conspiracy claim against Loftus was appropriate because Harvey’s allegations and the reaso nable inferences they supported fail ed 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 longstand ing 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

. Becau se 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 fa ir 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 . T he Bivens action relied on the improperly pled conspiracy claim, thus it is also insufficient

. W e therefore affirm the District Court’s d ismissal 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 tha t 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 f raud or misconduct against the defendants; r ather, she alleged misconduct on the part of the District Court

.

4 The District Court dismissed the Bivens a ction 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 err or 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

A lleged misconduct of the District Court may be remedied by a motion pursuant
to Rule 60(b)(6) “in extraordinary circumstances where, without su ch 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 perpetra ted by an adverse party and did not demonstrate extraordinary circumstances or

e xtreme hardship caused by the D i s trict Court, th ere was no basi s for relief under Rule 60(b)

. VI. For the foregoing reasons, this appeal present s no substantial question and we will summarily affirm.