PS5-158 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4105

___________

STEPHEN G. CONKLIN,

 Appellant

v.

YVETTE KANE; PETER J. SMITH; 

MARK E. MORRISON; CHRISTINA GARBER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-13-cv-02618)

District Judge: Honorable Juan R. Sánchez

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 6, 2015

Before: CHAGARES, JORDAN and COWEN, Circuit Judges

(Opinion filed: July 20, 2015)

___________

OPINION*

___________

PER CURIAM

 

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

constitute binding precedent.
2

Stephen G. Conklin appeals from the order of the District Court dismissing his 

complaint. We will affirm.

I.

At issue here is a complaint that Conklin filed against The Honorable Yvette Kane 

(of the United States District Court for the Middle District of Pennsylvania), Peter J. 

Smith (the United States Attorney for the Middle District of Pennsylvania), and others of 

his office. Conklin’s complaint, which he filed through counsel Don E. Bailey, contains 

two principal allegations. 

First, Conklin alleges that Judge Kane and the United States Attorney’s office 

improperly removed his state-court action against Judge Kane to federal court. The 

background of this claim is summarized in the margin.1 Second, Conklin claims that 

Judge Kane has orchestrated a conspiracy to conduct what he calls “surveillance activity” 

against his counsel Bailey. In particular, Conklin alleges that Kane arranged through the 

PACER system to route Bailey’s cases “to a number of hand-picked judges and clerks in 

 

1

In 2013, Conklin instituted an action against Judge Kane by filing a praecipe for a writ 

of summons in the Pennsylvania Court of Common Pleas for Dauphin County. A writ of 

summons contains no claims or allegations specifying the nature of the suit. Judge Kane, 

represented by the United States Attorney’s office, removed that action to federal court at 

M.D. Pa. Civ. No. 1-13-cv-1531. The District Court remanded the action to state court 

because it determined that removal was premature. Conklin’s first claim is based on this 

allegedly improper removal. When back in state court, Conklin filed a motion for 

sanctions against Judge Kane based on the same theory. Judge Kane removed the 

sanctions proceeding to federal court at M.D. Pa. Civ. No. 1-13-cv-03058, and the 

District Court denied the motion for sanctions. Conklin’s appeal from that ruling is 

pending at C.A. No. 14-4106 and is not yet ripe for disposition. As far as the record 
3

the Middle District and the Third Circuit over a period of years.” (ECF No. 1 at 12 ¶ 73.) 

Conklin claims that defendants’ alleged conduct violated various constitutional rights. 

All defendants moved to dismiss Conklin’s complaint under Rule 12(b)(6) of the 

Federal Rules of Civil Procedure. Conklin responded to those motions and also filed a 

motion to disqualify the District Judge. By order entered September 5, 2014, the District 

Court denied Conklin’s motion, granted defendants’ motions, and dismissed Conklin’s 

complaint with prejudice. Conklin appeals pro se.2

II.

We will affirm primarily for the reasons explained by the District Court. Conklin 

devotes much of his briefs to arguing that the alleged impropriety of defendants’ removal 

of his state-court action is “law of the case” by reason of the remand in M.D. Pa. Civ. No. 

1-13-cv-1531. We express no opinion on that issue because, even if it were so, it would 

be irrelevant for present purposes. A defendant’s alleged misconduct during litigation 

generally is redressible by sanctions in that litigation. Conklin unsuccessfully sought 

sanctions against Judge Kane, and his appeal from the order denying them is pending at 

 

shows, Conklin has never stated the basis for filing suit against Judge Kane in state court.

2 We have jurisdiction under 28 U.S.C. § 1291. Conklin challenges both the dismissal of 

his complaint and the District Judge’s denial of his motion for disqualification. We 

exercise plenary review over the dismissal of a complaint and will affirm if it fails to 

“state a claim to relief that is plausible on its face.” Capogrosso v. Sup. Ct. of N.J., 588 

F.3d 180, 184 (3d Cir. 2009) (per curiam) (quotation marks omitted). We review the 

denial of disqualification for abuse of discretion. See United States v. Ciavarella, 716 

F.3d 705, 717 n.4 (3d Cir. 2013), cert. denied, 134 S. Ct. 1491 (2014).
4

C.A. No. 14-4106. Conklin pleaded nothing suggesting that the removal violated his 

constitutional rights or resulted in any independently redressible injury. 

Conklin also does not challenge the District Court’s dismissal of his claims based 

on the “surveillance activity” allegedly directed at his counsel Bailey, and we agree with 

the District Court both that his allegations in that regard are wholly fanciful and 

conclusory and that Conklin has alleged nothing potentially giving him standing to assert 

these claims. We are further satisfied that amendment of his complaint would be futile. 

See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

Finally, the District Judge did not abuse his discretion in declining to recuse 

himself under 28 U.S.C. § 455(a) for the reasons he explained in the order of dismissal. 

Conklin argues on appeal that the order of dismissal itself raises the appearance of 

partiality because the District Court sua sponte retained jurisdiction to consider “whether 

to shift fees or otherwise impose sanctions against Conklin and his attorney, should 

Defendants wish to pursue such relief.” (ECF No. 39 at 1-3.) (Defendants have not done 

so to date.) Any reasonable person reviewing this matter would understand the District 

Court’s statement, not as an expression of bias against Conklin, but as a response to the 

nature of his allegations.

For these reasons, we will affirm the judgment of the District Court. Conklin’s 

motions for oral argument and to strike Judge Kane’s appellate brief are denied.