                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-2136
                                       ___________

                              RICHARD C. STEPHENS,
                        Son, Henry & Dessie Stephens, Deceased,
                                                             Appellant

                                             v.

                   CHAD F. KENNEY; PETER G. MYLONAS;
             JENNIFER H. MADDALONI; BETTY G. SMITH STEPHENS
                    ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-18-cv-04295)
                       District Judge: Honorable Paul S. Diamond
                      _____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 19, 2020

                Before: KRAUSE, MATEY and COWEN, Circuit Judges

                            (Opinion filed: February 20, 2020)
                                      ___________

                                        OPINION *
                                       ___________




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

       Appellant Richard Stephens, proceeding pro se, appeals from the District Court’s

dismissal of his amended complaint. We will affirm the District Court’s judgment.

       In September 2018, Stevens filed a civil action in the District Court against the

following named defendants: former Court of Common Pleas of Delaware County trial

court Judge, Chad F. Kenney (now of the United States District Court for the Eastern

District of Pennsylvania); former Delaware County Court Register of Wills, Jennifer

Holsten Maddaloni; his deceased father’s surviving spouse, Betty G. (Smith) Stephens;

and her attorney, Peter G. Mylonas, Esq. Because we write primarily for the parties, we

will only recite the facts necessary for our discussion.

       Prior to the death of appellant’s father, Henry Stephens, Judge Kenney appointed

Henry Stephens’ wife, Betty Stephens, as his guardian and executor of his estate having

found that Henry Stephens was incapacitated due to end stage dementia. Upon petition

of the guardian spouse, Judge Kenney subsequently authorized the sale of real property at

305 Buck Lane (their marital home), after concluding that it was in Henry Stephens’ best

interest. Following the death of Henry Stevens in August 2015, Betty Stephens filed for

a grant of Letters Testamentary. Register of Wills Maddaloni granted the Letters on

January 26, 2016. Stephens appealed the decision of the Register of Wills. Judge

Kenney adjudicated the matter and denied Stephens’ petition to invalidate the will. The

Superior Court affirmed Judge Kenney’s decision, In re Estate of Stephens, No. 2939

EDA 2016, 2017 WL 4877014 (Pa. Super. Ct. Oct. 30, 2017), and the Pennsylvania
                                              2
Supreme Court denied his petition for allowance to appeal. In re Estate of Stephens, 189

A.3d 979 (Pa. 2018) (table).

       Stephens next sought recourse in federal court. The operative complaint is the

amended complaint filed on October 17, 2018. Therein Stephens alleged that the named

defendants conspired to carry out a fraud upon the court and to deprive him of his

constitutional rights during various state court proceedings. More particularly, he alleged

that he was deprived of real estate without due process of law in violation of the Fifth

Amendment. He alleged that he suffered a Sixth Amendment violation because the

Orphans’ Court bench trial, during which he contested his father’s will, was neither fair

nor impartial. Stephens also asserted that the fraud committed by the court and court

agents deprived him of equal protection of the laws, thus resulting in a Fourteenth

Amendment violation. He further alleged that defendants violated numerous federal

laws. See Am. Compl. at 2. In addition to monetary damages and equitable relief,

Stephens sought to have the District Court refer his case to the Federal Bureau of

Investigation for “indictment and prosecution” and to set aside all judgments entered by

the Orphans’ Court. See id. at 12. Defendants responded to Stephens’ amended

complaint with motions to dismiss. The District Court concluded that dismissal was

warranted and granted defendants’ motions. The court subsequently denied Stephens’

motions for reconsideration and recusal. Stephens timely appealed.




                                             3
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 1 We exercise

plenary review over the District Court’s decision to grant a motion to dismiss pursuant to

either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). See United States ex rel.

Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (Fed. R. Civ. P.

12(b)(1)); Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d

Cir. 2010) (Fed. R. Civ. P. 12(b)(6)). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is



1
       Although Stephens’ post-judgment motion qualifies as a timely filed motion
pursuant to Fed. R. Civ. P. 59 and 60 under Fed. R. App. P. 4(A)(4)(iv) and (vi),
Stephens did not file a new or amended notice of appeal. See Fed. R. App. P.
4(A)(4)(B)(ii). Stephens was advised of the Rule 4(a)(4)(B)(ii) requirement by Clerk
Order issued on May 31, 2019. Accordingly, the scope of this appeal is limited to the
order of dismissal.

       Even if properly before us, we would nonetheless find no error with the District
Court’s disposition given the legal bars to Stephens’ claims discussed in this opinion. As
the District Court concluded, the motion was not based on an intervening change in the
law, newly discovered evidence, or “the need to correct a clear error of law or fact or to
prevent manifest injustice.” See Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros,
176 F.3d 669, 677 (3d Cir. 1999). Moreover, the District Court did not err in denying
Stephens’ motion as one filed pursuant to Fed. R. Civ. P. 60(b)(3), (6), or (d)(3). For the
reasons given by the District Court, Stephens’ arguments either lacked merit or were not
grounded in a proper basis for relief. See Budget Blinds, Inc. v. White, 536 F.3d 244,
251 (3d Cir. 2008).

        With respect to Stephens’ recusal motion, we find no abuse of discretion on the
part of the District Court judge in denying Stephens’ motion which cited 28 U.S.C. §§
144 & 455. See Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d
Cir. 2000). Stephens did not allege any facts that would show a personal bias on the part
of the District Court Judge or that the Judge’s impartiality might reasonably be
questioned. His disagreement with the Judge’s judicial orders is an insufficient basis for
recusal. See id.
                                              4
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

When reviewing disposition of a motion to dismiss, we “disregard rote recitals of the

elements of a cause of action, legal conclusions, and mere conclusory statements.” James

v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). We agree with the District

Court’s disposition of this case.

       The Rooker-Feldman 2 doctrine deprives federal courts of subject-matter

jurisdiction over claims when “(1) the federal plaintiff lost in state court; (2) the plaintiff

‘complains 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 district court

to review and reject the state judgments.” Great W. Mining & Mineral Co. v. Fox

Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (alterations omitted) (quoting Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).

       While this doctrine is “narrow,” id. at 169, it encompasses at least some aspect of

Stephens’ claims. As noted previously, Judge Kenney adjudicated Henry Stephens to be

incapacitated, appointed Betty Stephens as his guardian and executor, and approved the

sale of their marital home. Following Henry Stephens’ death, Register of Wills

Maddaloni granted Betty Stephens Letters Testamentary. Stephens challenged the

decision of the Register of Wills as well as Judge Kenney’s subsequent adjudication of

the matter. Stephens pursued his unsuccessful attempt to invalidate Henry’s will with


2
 Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460
U.S. 462 (1983).
                                          5
appeals to both the Pennsylvania Superior and Supreme Courts. Thus, Stephens lost in

state court. His claims allege, at least in part, that this “defective will contest” precluded

him from acquiring property that he believed he was entitled to. That order preceded his

federal action. Finally, he contends that the actions of Maddaloni and Judge Kenney

violated his constitutional rights. He thus asked the District Court to “set aside all

judgments entered” by the Orphans’ Court. See Great W. Mining & Mineral Co., 615

F.3d at 166-67 (describing similar claim and concluding that it would be barred by

Rooker-Feldman). Additionally, for the reasons set forth by the District Court, we agree

that Stephens’ attempt to invoke the fraud exception is unavailing. See D. Ct. Order at 4-

6 (July 23, 2019) (ECF 29).

       To the extent that Stephens may also be asserting that some independent injury

was caused by the defendants’ conduct during the incompetency, probate, and subsequent

Orphans’ Court proceedings, those claims arguably are not barred by the Rooker-

Feldman doctrine. See id. at 168-71. However, the claims face other legal bars. Under

the Eleventh Amendment, “an unconsenting State is immune from suits brought in

federal courts by her own citizens as well as by citizens of another State.” Edelman v.

Jordan, 415 U.S. 651, 663 (1974). Eleventh Amendment immunity protects not only

states but also state entities, such as the Pennsylvania Court system. Benn v. First

Judicial Dist., 426 F.3d 233, 240-41 (3d Cir. 2005). Pennsylvania has not waived its

Eleventh Amendment immunity. See Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir.

1981). Judge Kenney is entitled to Eleventh Amendment immunity for the claims
                                               6
asserted against him in his official capacity as the conduct of which Stephens complains

clearly relates to Judge Kenney’s role in the proceedings concerning Henry Stephens, his

estate and his will that occurred in the Orphans’ Court Division of the Delaware County

Court of Common Pleas. Where, as here, a state official is sued for his conduct in court,

Eleventh Amendment immunity attaches because the state and its court, although not

named, are the real parties in interest. See Benn, 426 F.3d at 239; Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 101 (1984).

       Insofar as Stephens may have raised claims against Register of Wills Maddaloni

and Judge Kenney that are not barred under the Rooker-Feldman doctrine or the Eleventh

Amendment, the District Court correctly determined that these claims are barred by

judicial immunity. “A judicial officer in the performance of his duties has absolute

immunity from suit and will not be liable for his judicial acts.” Capogrosso v. Sup. Ct. of

N.J., 588 F.3d 180, 184 (3d Cir. 2009) (quoting Azubuko v. Royal, 443 F.3d 302, 303 (3d

Cir. 2006)); see also Retail Clerks Int'l Ass'n v. Leonard, 450 F. Supp. 663, 66 (E.D. Pa.

1978) (citing Pa. Const. Sched. Art. V, § 16(n)) (“The Register of Wills is a judicial

officer” entitled to “absolute immunity for performance of . . . judicial acts.”). Although

Stephens asserted that the actions of Judge Kenney and Register of Wills Maddaloni were

“nonjudicial,” he principally complained that the competency hearing, Letters

Testamentary, and will contest adjudication were handled erroneously and fraudulently.

Such allegations are insufficient to overcome judicial immunity. See Capogrosso, 588

F.3d at 184 (judicial immunity extends to judicial officers, even if their actions were “in
                                             7
error, w[ere] done maliciously, or w[ere] in excess of [their] authority,” unless the judges

acted in clear absence of all jurisdiction) (internal quotations and citation omitted).

       The claims against Betty Stephens and Mylonas fare no better. To state a claim

under 42 U.S.C. § 1983, a plaintiff “must establish that [he] was deprived of a federal

constitutional or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d

Cir. 2009). Neither Betty Stephens nor Mylonas is a state actor. See, e.g., Angelico v.

Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (“Attorneys performing their

traditional functions will not be considered state actors solely on the basis of their

position as officers of the court.”). It is true that a private party will be deemed a state

actor for purposes of § 1983 liability if he or she has engaged in joint activity with state

actors, Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941 (1982), but Stephens failed

to allege plausible facts sufficient to support a claim of joint activity. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 679.

       To properly plead an unconstitutional conspiracy, a plaintiff must assert facts from

which a conspiratorial agreement can be inferred. D.R. by L.R. v. Middle Bucks Area

Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir. 1992); see also Great W. Mining,

615 F.3d at 176 (following Twombly and Iqbal, the plaintiff must assert enough facts

from which an agreement may be inferred). Stephens alleged little more than that Betty

Stephens and Mylonas submitted a “falsified” petition for probate and grant of letters

testamentary, while Register of Wills Maddaloni used the incorrect docket number (575
                                               8
of 2016 instead of 575 of 2013) on filings, and Judge Kenney adjudicated the

proceedings “illegally”. We agree with the District Court’s determination that Stephens’

allegations were conclusory and insufficient to suggest that a conspiratorial agreement

existed between these private actors and Judge Kenney and former Register of Wills

Maddaloni. Stephens simply concludes that defendants conspired to deprive him of

property without due process because Betty Stephens ultimately obtained control of

property that he worked for and claimed his father had promised to him. See Dennis v.

Sparks, 449 U.S. 24, 28 (1980) (“[M]erely resorting to the courts and being on the

winning side of a lawsuit does not make a party a co-conspirator” with a state actor.); see

also Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (plaintiff cannot rely

exclusively “upon his own suspicion and speculation” to establish a conspiracy claim).

       The remainder of Stephens’ federal law claims were likewise properly disposed of

by the District Court and do not warrant further discussion. See D. Ct. Order at 6-7 (Mar.

15, 2019) (ECF 13). Finally, under the circumstances of this case, the District Court

acted within its discretion when it denied Stephens leave to further amend his complaint.

See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Accordingly,

we will affirm the judgment of the District Court. 3



   3
        Stephens’ request that we issue an order directing appellees Betty Stephens and
Mylonas to show cause why they should not be held in contempt of court and obstruction
of justice for filing “perjurious pleadings,” see Aplt’s Reply Br. at 10-11, 17, is denied as
unwarranted.

                                              9
