NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-3314

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PETER J. CRESCI; JANE DOES 1-50; JOHN DOES 1-50

v.

SUSAN GYSS, a/k/a SUSAN GYSS GREGORY;

JOHN DOES 1-4; XYZ CORP 1-3, fictitious Corps

PETER J. CRESCI,

Appellant

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Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-17-cv-02342)

District Judge: Honorable Kevin McNulty

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Submitted Under Third Circuit L.A.R. 34.1(a)

September 24, 2019

Before: McKEE, AMBRO, and ROTH, Circuit Judges

(Opinion filed: February 3, 2020)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

AMBRO, Circuit Judge

Peter J. Cresci sued Susan Gyss alleging that, as a municipal prosecutor in 

Bayonne, New Jersey, she harassed him and violated his constitutional rights. His pro se 

complaint brought numerous claims under 42 U.S.C. § 1983, including malicious 

prosecution, excessive force, false imprisonment, abuse of process, and First Amendment 

retaliation, as well as various state-law tort claims. The factual assertions in the 

complaint are not entirely clear, but the essence is that Cresci was charged with 

harassment of a tenant, and he believes that Gyss behaved improperly in prosecuting that 

charge. 

The District Court granted Gyss’s motion to dismiss the complaint. See Cresci v. 

Gyess, 2018 WL 4961466 (D.N.J. 2018). It based its decision principally on a finding 

that Gyss was absolutely immune from civil suit under § 1983 for her actions as a 

municipal prosecutor, an argument with which Cresci did not meaningfully engage. Id. at 

*3–*6. Despite this finding, the Court went on to explain why each of Cresci’s federal 

claims merited dismissal for other reasons, including failure to state a valid claim and 

failure to comply with the statute of limitations. Id. at *6–*12. 

Having dismissed each of the federal claims, the Court declined to exercise 

supplemental jurisdiction over Cresci’s state law claims, id. at *13. It therefore dismissed 

the entire complaint with prejudice. Id.

1

 

1 Although normally a complaint would be dismissed without prejudice, Cresci had 

already withdrawn one complaint in the face of a motion to dismiss and filed an amended 

complaint. Thus the District Court concluded that amendment would be futile.
3

Cresci, still acting pro se, now appeals, but he does not mention the dispositive 

issue in the District Court’s opinion—prosecutorial immunity—in his opening brief. His 

reply brief attempts to engage on this issue, but (even setting aside the usual rule that 

arguments raised for the first time in a reply brief are waived, see In re Surrick, 338 F.3d 

224, 237 (3d Cir. 2003)) offers no substantial reason why the Court erred. Instead, he 

suggests that “qualified immunity,” as he terms it, does not apply at the motion-todismiss stage. This is incorrect; both qualified and absolute immunity are not just a 

defense to liability but “an entitlement not to stand trial,” Mitchell v. Forsyth, 472 U.S. 

511, 525 (1985), and therefore may be raised at any point during litigation, including by a 

motion to dismiss. See Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008). Next, Cresci 

suggests that Gyss was not truly a government employee but rather a mere “contractor,” 

and thus she is not entitled to an immunity defense. Although the Court has held that 

some private contractors providing government services are not entitled to official 

immunity, see Richardson v. McKnight, 521 U.S. 399 (1997), this is not an absolute rule. 

Rather, it is a narrow exception to the general rule that private contractors rendering 

government services can assert official-immunity defenses. See Filarsky v. Deia, 566 

U.S. 377 (2012) (holding that a lawyer retained by the government on a limited basis to 

conduct an investigation could assert qualified immunity).

The bulk of Cresci’s argument, however, is that Gyss violated clearly established 

rights and would have known that her conduct is wrongful. This might matter were she

entitled only to qualified immunity (and, again, if Cresci had not waived the issue). But 

prosecutors are entitled to absolute immunity. See Imbler v. Pachtman, 424 U.S. 409 
4

(1976). We do not inquire at all whether a prosecutor’s actions were wrongful or 

unlawful so long as they are “undertaken . . . in preparing for the initiation of judicial 

proceedings or for trial, and which occur in the course of [the prosecutor’s] role as an 

advocate for the State.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). The District 

Court explained at length why Gyss’s alleged actions fell within the scope of her role as a 

prosecutor and hence were entitled to absolute immunity. Cresci does not challenge that 

finding, or its resulting conclusion, aside from his argument about Gyss’s supposed 

contractor status. 

We agree with the District Court that Gyss was entitled to absolute immunity from 

Cresci’s federal claims. Accordingly, Cresci’s main arguments on appeal—which 

challenged only the alternate grounds given for dismissal—are immaterial. We conclude, 

moreover, that the denial of supplemental jurisdiction over Cresci’s state-law claims was 

not an abuse of discretion. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline 

to exercise supplemental jurisdiction over a claim . . . if the district court has dismissed 

all claims over which it has original jurisdiction.”).

Thus we affirm.