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BLD

- 284 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1281

___________ BURL ANDERSON HOWELL,

Appellant

v. JUDGE ROBERT B. YOUNG, Kent County Superior Court, acting in his official capa city; JUSTICE HENRY DUPONT RIDGLEY, Kent County Superior Court Presid ent, in his official capacity; JUSTICE JACK B. JACOBS, Vice Chancellor of Sussex Co. Ct. of Chan cery, in his official capacity; COMMISSIONER ANDREA MAYBEE FRE UD, Commissioner of Kent County Superior C o urt, in her official capacity; MARGARET A NN WARREN, citizen of Delaware; BROWN SHEILS & O' BRIEN, corporation of Delaware; H. CUBBAGE. BR OWN, JR., attorney of Delaware;

WILLIAM M. CHASANOV, attorney of Delaware

____________________________________ On Appe al from the United States District Court

for the District of Delaware (D.C. Civil No. 12

- cv - 01112 ) District Judge: Honorable Gregory M. Sleet

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or S ummary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 13, 2013 Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

(Opinion filed : July 3, 2013 )

_________ OPINION

_________2

PER CURIAM Appellant, Burl Anderson Howell, appeals from the United States District Court for the District of Delaware‟s order dismissing his civil complaint. For principally the reasons given in the Dis trict Court‟s M emorandum, w e will summarily affi rm . See 3d Cir. LAR 27.4; I.O.P. 10.6.
I. In 1994 Howell ple a d ed guilty and was convicted of second

- degree forgery and second

- degree perjury arising out of his forgery of his deceased brother‟s will. See In re Petition of Howell , No. 126, 2007, 2007 WL 11 14123 (Del. Apr. 16, 2007). Howell was ultimately ordered to pay restitution directly to a claimant of his brother‟s estate, wh o is a defendant in this case. 1 In 2012, Howell , proceeding pro se and in forma pauperis , filed a complaint, which he later ame nded , seeking relief pursuant to 42 U.S.C. § 1983 and Delaware state law

. Howell named as defendants three judges in the Delaware state courts, a Dela ware state court commissioner, the claimant of his deceased brother‟s estate, two of the claimant‟s attor neys, and a law firm where one of the attorneys was employed. Generally, Howell alleged that the defendants, all connected to the litigation that resulted in the order of restitution , violated Howell‟s constitutional rights, and that Del. Code Ann. tit. 1 1, § 4106, which governs the imposition of restitution in certain

1 The Dis trict Court‟s January 14, 2013 M emorandum contains a comprehensive discussion of the relevant background. See Howell v. Young , No. 12

- 1112, 2013 WL 164859, at *1

- 2 (D. Del. Jan. 14, 2013).3

criminal cases, was unconstitutional. Howell also raised state

- law claims. Howell sought compensatory damages, punitive damages, injunctive relief, and declaratory relief

. The District Co urt held that th e federal claims were frivolous and dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). The District Court also concluded that amendment of the complaint would be futile and did not exercise supplemental jurisdiction over Howell ‟s state law claims

. II. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court‟s sua spont e dismissal under § 1915(e)(2)(B) for failure to state a claim is plenary, and “we must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom.” Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000) (quoting Nami v. Fauver , 82 F.3d 63, 65 (3d Cir. 1996)) (internal quotation marks omitted). We may summarily affirm if the appeal does not present a substantial question, and may do so on any basis supported by the record. Murray v. Bledsoe , 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
III. The District Court properly dismissed Howell‟s claims against defendants Judge Robert B. Young, Justice Henry duP ont Ridgley, Justice Jack B. Ross, and Commission er Andrea Maybee Freud. Howell‟s claims against these defendants relate d to actions taken in their judicial capacities

. A s judicial officers they are entitled to absolute judicial4

i mmunity from claims for damages

. 2 Mireles v. Waco , 502 U.S. 9, 11 (1991); 10 Del. Code Ann. tit. 10, §§ 1315

- 1316 (establishing that Commissioners in the Delaware state court system are judicial officers) . Although “immunity, whether qualified or absolut e, is an affirmative defense which must be affirmatively pleaded,” Kennedy v. City of Cleveland , 797 F.2d 297, 300 (6th Cir. 1986), the District Court did not err in raising it sua sponte because the defect was clear from the face o f Howell‟ s complaint. R ay v. Kertes , 285 F.3d 287, 296 (3d Cir. 2002). Howell requested injunctive relief in the form of orders variously prohibiting the judicial defendants from employing certain constructions and application s of section 4106. Pursuant to § 1983, when an actio n is brought against a judicial officer acting in their official capacity, injunctive relief is prohibited “unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983; Azubuko v. Royal , 443 F.3d 302, 303

- 04 (3d Cir. 2006) (per curiam). Howell has neither alleged nor established such a basis for relief. Consequently, injunctive relief is statutorily prohibited. The D istrict Court properly dismissed Howell‟s claim that section 4106 was unconstitutionally applied by the Delaware Superior Court

. Section 4106 provides that an individual convicted of depriving another of property shall be liable “to each victim of

2 We agree with the District Court‟s conclusion that Howell failed to set forth facts demonstrating that the defendants acted in the clear absence of jurisdiction. See Stump v

. Sparkman , 435 U.S. 349, 356

- 57 (1978).5

the offense” for the value of the property lost. Del. Code Ann. tit. 11, § 4106. Howell alleged that sec tion 4106 did not permit the restitution payment to be made directly to the claimant, who was not a victim of the offense

. Despite Howell‟s argument to the contrary, the Rooker

- Feldman doctrine bars review of this claim. The Rooker

- Feldman doctrine depri ves federal district courts of jurisdiction “over suits that are essentially appeals from state

- court judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild
LLP , 615 F.3d 159, 165 (3d Cir. 2010). The Rooker

- Feldman doctrine applies when four require ments are met: “(1) the federal plaintiff lost in state court; (2) the plaintiff

„ complain [ s ] of injuries caused by [ the ] state

- court judgments ‟ ; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the dis trict court to review and reject the state judgments.” Id. at 166 (alterations in original) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 284 (2005))

. Howell‟s as

applied challenge satisfies the four Rooker

- Feldman doctrine requir ements . Therefore, review of the state court‟s application of section 4106 is barred

. See id.
To t he extent that Howell asserts a facial attack on section 4106 , arguing that the
statute as written violates constitutional due process , he lacks standing. 3 See Mosby v. Ligon , 418 F.3d 927, 933

- 34 (8th Cir. 2005) (holding that plaintiff lacked standing to

3 Although the District Court did not address the issue of standing, “every federal appellate court has a special obligation to „satisfy itself not only of its own jurisdiction, but also that of the lower courts.‟” Arizonans for Official English v. Arizona , 520 U.S. 43, 73 (1997) (quoting Mitchell v. Maurer , 293 U.S. 237, 244 (1934) )

.6

bring facial challenge when as

- applied challenge was barred by the Rooker

- Feldman doctrine). We agree with the District Court‟s conclusion that , for purpo ses of § 1983 , the remaining defendants are not state actors and did not act u nder color of state law

. See 42 U.S.C. § 1983; Groman v. Twp. of Manalapan , 47 F.3d 628, 638 (3d Cir. 1995) ( “ [T]here is no liability under § 1983 for those not acting under col or of law.”) ; Steward v. Meeker , 459 F.2d 669 , 670 (3d Cir. 1972) (per curiam) (holding that private counsel does not act under color of state law)

. Consequently, Howell failed to state a claim against the defendants who were not judicial officers

. Becau se the defects in Howell‟s complaint were incurable , the District Court did not abuse its discretion concluding that amendment would have been futile. See Foman v. Davis , 371 U.S. 178, 182 (1962). Finally, we conclude that the District Court did not abus e its discretion in dec lining to exercise supplemental jurisdiction over Howell‟s state law claims. See 28 U.S.C. § 1367(c)(3); Borough of W. Mifflin v. Lancaster , 45 F.3d 780, 788 (3d Cir. 1995).
IV.
For the foregoing reasons, no substantial question is presented by this appeal. Accordingly, we will summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4; I.O.P. 10.6.