                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2007

O'Brien v. State of NJ
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2452




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Recommended Citation
"O'Brien v. State of NJ" (2007). 2007 Decisions. Paper 1364.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1364


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                                                                *RESUBMIT BPS-342
                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-2452
                                  ________________

                                RICHARD O’BRIEN,
                                         Appellant

                                           v.

                              STATE OF NEW JERSEY
                              ______________________

                   On Appeal From the United States District Court
                            For the District of New Jersey
                             (D.C. Civil No. 05-cv-03809)
                   District Judge: Honorable Garrett E. Brown, Jr.
                             ________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
          or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  January 8, 2007

               Before: RENDELL, AMBRO and ROTH, Circuit Judges

                                 (Filed: April 3, 2007)
                                  ________________

                             OPINION OF THE COURT
                                 _______________

PER CURIAM

             Appellant, Richard O’Brien, timely appeals from the District Court’s grant

of defendant’s Motion to Dismiss based on sovereign immunity.

             O’Brien is a former firefighter for the City of Hackensack who claims that
the State of New Jersey violated his constitutional rights by mishandling the appeal of his

discharge from that employment. Specifically, he alleges that the State Department of

Personnel acted improperly by rejecting his appeal due to his failure to attend a hearing

that was held ten months before he had filed that appeal. He sought to have the District

Court waive the time limitation on his appeal, overturn the underlying employment

decision, and award money damages. The District Court denied his motion to file an

amended complaint adding as defendants various State officers acting in their official

capacities.

              We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and undertake

plenary review of the District Court’s ruling on immunity. See United States v. Gov’t of

V.I., 363 F.3d 276, 284 (3d Cir. 2004). States may not be sued by private parties in

federal court unless Congress has exercised its limited power to authorize such suits or

the state waives its sovereign immunity by consenting to suit. See Coll. Sav. Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70 (1999). Here, the State

of New Jersey is the only defendant.1 As sovereign immunity has neither been abrogated

by Congress nor waived by the state in this case, we conclude that the complaint was




  1
     The proposed amendment to the complaint would have been futile. Suits against
state officers acting in their official capacities are treated the same as suits against the
state itself, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989), except in limited
circumstances not present here. See, e.g., Verizon Md., Inc. v. Public Servs Comm’n,
535 U.S. 635, 645 (2002).

                                              2
properly dismissed.2

             Accordingly, we will affirm the order of the district court. Appellant’s

motion for appointment of counsel is denied.




  2
     On December 7, 2006, we requested that appellant submit a two-page brief
addressing the sovereign immunity issue. Appellant’s motion to increase the page limit
of his brief in response to court order from two to four pages is granted. We have given
full consideration to all arguments contained in the submitted brief.

                                            3
