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

3-8-2012 

# H a r r y S mith v

. F r a nc i s R e b s t o ck

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-3432

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the 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 a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" H a r r y S mith v

. F r a nc i s R e bs t ock " (2012). 2012 D e cisio n s . P a pe r 1318. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2012/1318NOT 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 t o 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 dismiss al of his cl aims in this civil rights action. For the reasons that follow, we will affirm.2 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 substa ntial 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 L ewis 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 (os tensibly 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, and3 “caused [him] to suffer mental distress, discomfort, and defa mation 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 concl uded 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 L ewis’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 b ecause she was a municipal, not a federal, employee; (2) th e 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 compl aint failed to state a procedural due process claim because “[e]ven assuming that Smith was deprived of a protected4 individual interest, he does not allege how the procedures in place were inadequate or insufficient”; and (4) to the extent the complaint al leged a defamation claim, that c laim 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 jurisdic tion over this appeal pursuant to 28 U.S.C. § 1291, 1

1 Although the District Court did not adjudicate Smi th’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. Emp s
. 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 opp osing 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 gr ant Judge Maier’s and Magistrate Rebstock’s motion to dismiss, we hold that, for the reasons provided by the District C ourt, that decision was proper. As for the District Court’s decision to grant Lewis’s motion to dismiss, we agree with the reasoning und erlying 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 t o his claims agai nst5 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 merit less

. 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.