DLD-285                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No.10-2057
                                      ___________

                                   JIMMIE L. COOK,
                                                        Appellant

                                            v.

        HOMER C. FLOYD; LYLE M. WOOD; RAYMOND CARTWRIGHT;
           PENNSYLVANIA HUMAN RELATIONS COMMISSION
                  ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 09-cv-00106)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  September 10, 2010

             Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges

                           (Opinion filed September 16, 2010)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Jimmie L. Cook appeals from an order of the United States District Court for the

Middle District of Pennsylvania that granted the defendants’ motion to dismiss his civil
rights complaint brought pursuant to 42 U.S.C. § 1983. Because no substantial question

is presented by this appeal, we will summarily affirm the District Court’s ruling.

       We review de novo the dismissal of a complaint under Rule 12(b)(6). Phillips v.

County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). Cook’s complaint was based on

the way the Pennsylvania Human Relations Commission (“PHRC”) and certain of its

employees (Home Floyd, Lyle Wood, and Raymond Cartwright) handled five separate

complaints he filed at various times between 1991 and 2007.

       The District Court properly dismissed Cook’s claims against the PHRC and its

employees on Eleventh Amendment grounds. The guarantee of the Eleventh Amendment

is that non-consenting states may not be sued by private individuals in federal court unless

Congress abrogates the states’ immunity pursuant to a valid exercise of its power. See

Bd. of Trustees of the Univ. of Al. v. Garrett, 531 U.S. 356, 363 (2001). The Eleventh

Amendment’s bar extends to suits against departments or agencies of the state having no

existence apart from the state. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).

State officials acting in their official capacities have the same Eleventh Amendment

immunity from damage suits as the state itself. See Hafer v. Melo, 502 U.S. 21, 30

(1991).

       The PHRC is an administrative commission within the executive department of the

Commonwealth of Pennsylvania and, as such, it shares in the Commonwealth’s Eleventh

Amendment immunity. See 43 Pa. Stat. Ann. §§ 956-7. Section 1983 did not abrogate



                                             2
the Commonwealth’s Eleventh Amendment immunity and the Commonwealth did not

waive it. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979) (section 1983 was not

intended to abrogate a State’s Eleventh Amendment immunity); Wheeling & Lake Erie

Ry. v. Public Util. Comm’n, 141 F.3d 88, 91 (3d Cir. 1998) (Pennsylvania has not

consented to suit in federal court); see also 42 Pa. Cons. Stat. Ann. § 8521(b). The PHRC

was thus immune from Cook’s suit. To the extent Floyd, Wood, and Cartwright were

sued in their official capacities, they too were immune from suit.

       To the extent Cook sued Floyd, Wood, and Cartwright in their individual

capacities, the District Court also properly dismissed Cook’s due process claims against

them. Although his complaint was not entirely clear, it appears Cook was attempting to

allege that the three named PHRC employees violated his rights when they dismissed his

complaints because of a finding of no probable cause, and when they denied him a

hearing.1 The District Court noted that pursuant to the Pennsylvania Human Relations

Act and the PHRC’s Special Rules of Administrative Practice and Procedure, the PHRC

may dismiss a complaint when its staff determines that no probable cause exists to credit

the allegations of the complaint. 16 Pa. Code §§ 42.41, 42.61; 43 Pa. Stat. Ann. 959.

Further, although a complainant may request a preliminary hearing to determine whether

the complaint was properly dismissed, the PHRC need not grant one whenever one is



   1
     Some of Cook’s claims appear to be barred by the statute of limitations, and some
also appear to be barred for failure to allege any personal involvement on the part of the
named defendants. As we affirm on other grounds, we need not reach these issues.

                                             3
requested. 16 Pa. Code 42.62; Baker v. Pennsylvania Human Relations Comm’n, 489

A.2d 1354, 1357-58 (Pa. 1985). The District Court also rightly emphasized that Cook

could not make out a due process claim against PHRC or its employees, as the PHRC’s

determinations are not binding or unappealable. Baker, 489 A.2d at 1357-58. Where the

PHRC decides not to proceed with a complaint, the complainant may file suit in the

Pennsylvania Court of Common Pleas; thus, the PHRC’s determination is not a final

adjudication of the complainant’s rights. 43 Pa. Stat. Ann. 962(c); Bailey v. Storlazzi,

729 A.2d 1206, 1209 (Pa. Super. Ct. 1999). We thus agree that Cook’s due process rights

were not finally affected by any actions of the PHRC. We further agree that Cook failed

to make out an equal protection claim, as he failed to allege that he was treated differently

than others by the defendants.

       For the foregoing reasons, we will affirm the order of the District Court.




                                              4
