2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-8-2012

Harry Smith v. Francis Rebstock

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3432

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3432

___________

HARRY F. SMITH,

Appellant

v.

FRANCIS F. REBSTOCK; FELINA GUSTOSON; EUGENE EDWARD T. MAIER; 

DAMIEN SAMMONS; KATHERINE LEWIS

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2:10-cv-01515)

District Judge: Honorable Louis H. Pollak

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 7, 2012

Before: SLOVITER, SMITH and GREENBERG, Circuit Judges

(Opinion filed : March 8, 2012 )

___________

OPINION

___________

PER CURIAM

Harry F. Smith, proceeding pro se, appeals from the District Court’s dismissal of

his claims in this civil rights action. For the reasons that follow, we will affirm.
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I.

In April 2010, Smith filed a pro se complaint in the District Court pursuant to 42 

U.S.C. § 1983, naming Philadelphia Court of Common Pleas Judge Eugene Maier, 

Arraignment Court Magistrate Francis Rebstock, Assistant District Attorney Damien 

Sammons, and Philadelphia Department of Human Services (“DHS”) social workers 

Katherine Lewis and Felina Gustoson as defendants. According to the complaint, at 

some point Smith had been charged with various sex offenses in state court. On April 21, 

2008, Magistrate Rebstock set bail at $100,000. Three days later, Smith received a letter 

from Lewis stating that the police had given DHS “a founded report of substantial 

evidence of child abuse,” and that such a report “‘may adversely affect your ability to 

obtain employment in any agency which provides care for children.’” (Compl. 5 

(ostensibly quoting Lewis’s letter).) On May 9, 2008, Smith received another letter, this 

time from both Lewis and Gustoson, stating that “the agency investigation determined 

substantial evidence constituting child abuse to be ‘indicated’ against [him], and that if 

[he] wish[ed] to review the findings he may notify the Public Welfare Secretary.” 

(Compl. 5 (ostensibly quoting Lewis’s and Gustoson’s letter).) On April 4, 2009, a jury 

found Smith not guilty of all criminal charges.

Smith’s complaint, which sought $2,525,000 in damages, alleged that Judge 

Maier, Magistrate Rebstock, and Sammons had violated his rights under the Fourth, Fifth, 

Thirteenth, and Fourteenth Amendments. As for Lewis and Gustoson, the complaint 

alleged that they had violated Smith’s Fifth and Fourteenth Amendment rights, and 
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“caused [him] to suffer mental distress, discomfort, and defamation by declaring [him] as 

a child abuser for public viewing.” (Compl. 5.) Notably, the United States Marshal was 

able to effectuate service of the complaint only on Judge Maier, Magistrate Rebstock, and 

Lewis.

In May 2010, Judge Maier and Magistrate Rebstock collectively moved to dismiss 

the claims against them; Lewis followed suit a few months later. On April 1, 2011, the 

District Court entered an order granting Judge Maier’s and Magistrate Rebstock’s motion 

to dismiss. In doing so, the court concluded that the claims against them were barred by 

the Eleventh Amendment and the doctrines of judicial and quasi-judicial immunity, and 

that amendment of those claims would be futile.

On August 4, 2011, the court entered another order, this time granting Lewis’s 

motion to dismiss. To the extent Smith’s claims were brought against Lewis in her 

official capacity, the court concluded that Smith “has not alleged any facts suggesting 

that a policy or custom of [DHS] caused the constitutional violations.” (Dist. Ct. Mem. 

entered Aug. 4, 2011, at 3-4.) To the extent the claims were brought against Lewis in her 

personal capacity, the court held as follows: (1) the Fifth Amendment did not apply to 

Lewis because she was a municipal, not a federal, employee; (2) the complaint failed to 

state a substantive due process claim because Smith “provides no facts indicating Lewis 

acted negligently or arbitrarily in her investigation, let alone that her conduct was so 

egregious that it ‘shocks the conscience’”; (3) the complaint failed to state a procedural 

due process claim because “[e]ven assuming that Smith was deprived of a protected 
4

individual interest, he does not allege how the procedures in place were inadequate or 

insufficient”; and (4) to the extent the complaint alleged a defamation claim, that claim 

failed because Smith “has not alleged any facts indicating that Lewis published any 

communication to a third party.” (Id. at 4-6 & n.1.)

Smith now seeks review of these two District Court orders.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291,1

 1 Although the District Court did not adjudicate Smith’s claims against Sammons or 

Gustoson, the court’s August 4, 2011 order nonetheless is final and appealable, for those 

two defendants were never served and thus are not considered parties to this lawsuit. See

De Tore v. Local # 245 of the Jersey City Pub. Emps. Union, 615 F.2d 980, 982 n.2 (3d 

Cir. 1980). We also note that, despite the fact that Smith’s notice of appeal referenced 

only the August 4, 2011 order, we may consider both that order and the April 1, 2011 

order. See Shea v. Smith, 966 F.2d 127, 129 (3d Cir. 1992) (“We have held that 

appellate jurisdiction vests over orders not specified in the notice of appeal if there is a 

connection between the specified and unspecified order, the intention to appeal the 

unspecified order is apparent, the opposing party is not prejudiced and has a full 

opportunity to brief the issues.” (citations omitted)). 

and exercise 

plenary review over a district court’s decision to grant a motion to dismiss. Gallo v. City 

of Phila., 161 F.3d 217, 221 (3d Cir. 1998). With respect to the District Court’s decision 

to grant Judge Maier’s and Magistrate Rebstock’s motion to dismiss, we hold that, for the 

reasons provided by the District Court, that decision was proper. As for the District 

Court’s decision to grant Lewis’s motion to dismiss, we agree with the reasoning 

underlying the court’s conclusion that the complaint’s allegations against Lewis are 

insufficient to state a claim under Fed. R. Civ. P. 12(b)(6). Although Smith was afforded 

an opportunity to identify in his appellate brief any amendments to his claims against 
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Lewis that might enable him to survive dismissal under Rule 12(b)(6), he did not identify 

any such amendments. Accordingly, we need not disturb the District Court’s dismissal of 

Lewis’s claims. See Lazaridis v. Wehmer, 591 F.3d 666, 672 (3d Cir. 2010) (concluding

that “it was unnecessary to provide [plaintiff] with an opportunity to amend his complaint 

because any amendment would have been futile”). 

We have considered the various arguments in Smith’s appellate brief and conclude 

that they are meritless. Accordingly, we will affirm the District Court’s orders. Smith’s 

request for an order compelling DHS to “immediately remove [his] name from off their 

State child abuse registry” is denied.