                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-2455
                                       ___________

                          E. THOMAS SCARBOROUGH, III,
                                          Appellant

                                             v.

           COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY;
                   SUPREME COURT OF PENNSYLVANIA
                  ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 5-18-cv-02436)
                      District Judge: Honorable Jeffrey L. Schmehl
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 18, 2020

           Before: SHWARTZ, RESTREPO and NYGAARD, Circuit Judges

                            (Opinion filed: February 20, 2020)
                                      ___________

                                        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.
       Pro se appellant E. Thomas Scarborough, III appeals the District Court’s order

dismissing his complaint. For the reasons set forth below, we will affirm the District

Court’s judgment.

       According to his operative amended complaint, Scarborough and his ex-wife have

been litigating a child-custody matter in the Court of Common Pleas of Northampton

County for more than a decade. Scarborough alleged that the Court of Common Pleas

violated his due-process rights in a variety of ways, including by improperly deferring to

recommendations from a master, granting primary physical custody to Scarborough’s ex-

wife without holding a trial, ruling that Scarborough had agreed to a custody schedule

when he had not actually agreed, and failing to fully consider his submissions. He also

claimed that the Pennsylvania Supreme Court violated his due-process rights by

dismissing his appeals. Scarborough asserted these claims in the District Court under 42

U.S.C. § 1983.

       The defendants filed a motion to dismiss, which the District Court granted. The

Court concluded that the two defendants—the Court of Common Pleas and the

Pennsylvania Supreme Court—were immune from suit under the Eleventh Amendment.

Scarborough filed a timely notice of appeal. In this Court, he has also filed a document

requesting “mandamus relief for discovery and summary judgment,” in which he asks us

to “investigate the internal operations of the Commonwealth Court.”

       We have jurisdiction under 28 U.S.C. § 1291. “We review de novo the legal

grounds underpinning a claim of . . . sovereign immunity.” Karns v. Shanahan, 879 F.3d

504, 512 (3d Cir. 2018).

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       We agree with the District Court’s analysis. The Supreme Court of Pennsylvania

and the Northampton County Court of Common Pleas are entitled to immunity under the

Eleventh Amendment. See Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir.

2005); see also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 146 (1993) (explaining that “suits against the States and their agencies . . . are barred

regardless of the relief sought”). While states can waive their Eleventh Amendment

immunity, see Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002), Pennsylvania

has not done so, see Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (“The

Pennsylvania legislature has, by statute, expressly declined to waive its Eleventh

Amendment immunity.”). Moreover, although Congress can abrogate a state’s sovereign

immunity, it did not do so through the enactment of § 1983, the federal law under which

Scarborough proceeds. See Quern v. Jordan, 440 U.S. 332, 345 (1979). 1 And contrary to


1
  In his brief on appeal, Scarborough claims that Title II of the Americans with
Disabilities Act (ADA) abrogates state immunity. This is true in some circumstances.
See Bowers v. NCAA, 475 F.3d 524, 556 (3d Cir. 2007). However, although he
mentioned that he has ADHD and complained about his ability to present his case in state
court, Scarborough did not plead an ADA claim in his counseled complaint in the District
Court, and he cannot raise a new claim for the first time on appeal. See Doe v. Mercy
Catholic Med. Ctr., 850 F.3d 545, 558 (3d Cir. 2017). We also note that, although the
outlines of this putative claim are not at all clear, if Scarborough were to challenge a final
order issued by the Court of Common Pleas denying an accommodation, his claim would
likely be barred by the Rooker-Feldman doctrine. See Great W. Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010); Sykes v. Cook Cty. Circuit Court
Probate Div., 837 F.3d 736, 743 (7th Cir. 2016) (“Rooker-Feldman will not always bar a
litigant from bringing claims against a state court for denial of reasonable
accommodations. . . . . But when as in this case the injury is executed through a court
order, there is no conceivable way to redress the wrong without overturning the order of a
state court. Rooker-Feldman does not permit such an outcome.”); see generally Malhan
v. Sec’y U.S. Dep’t of State, 938 F.3d 453, 460 (3d Cir. 2019) (discussing when an order
is final in this context).
                                              3
Scarborough’s argument, he cannot avoid this bar by asserting a freestanding claim under

the Fourteenth Amendment. See Capogrosso v. Supreme Ct. of N.J., 588 F.3d 180, 185

(3d Cir. 2009); see also Magana v. N. Mar. I., 107 F.3d 1436, 1442–43 (9th Cir. 1997)

(Aldisert, J.). Because of this bar, we are also satisfied that any amendment to the

complaint would have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103,

106, 108 (3d Cir 2002).

       Accordingly, we will affirm the District Court’s judgment. Scarborough’s motion

“for mandamus relief for discovery and summary judgment” is denied.




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