                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 13-2182
                                 ___________

                 ADOLPH FUNCHES, III; ERMA FUNCHES,
                                             Appellants

                                       v.

 BUCKS COUNTY; BUCKS COUNTY OFFICE OF THE CLERK OF COURTS OR
   CLERK OF COURTS OF BUCKS COUNTY; ROBERT J. MELLON, IN HIS
   PERSONAL AND/OR INDIVIDUAL CAPACITY; FIRST DEPUTY ERIN K.
 SCHIEBER; CLERICAL SUPERVISOR EILEEN HUDSON; DEPUTY SARA OTT;
    DEPUTY JESSICA E. FROST; SECOND DEPUTY NATALIE LITCHKO
                ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                     (D.C. Civil Action No. 2-12-cv-02626)
                  District Judge: Honorable Paul S. Diamond
                  ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                October 1, 2014
             Before: JORDAN, COWEN and BARRY, Circuit Judges

                        (Opinion filed: October 8, 2014)
                                 ___________

                                  OPINION
                                 ___________

PER CURIAM
       Adolph and Erma Funches, proceeding pro se and in forma pauperis, appeal from

the District Court’s March 22, 2013 order dismissing their civil rights lawsuit. We will

affirm the District Court’s order.

                                              I.

       The Funches, who are African American members of The Original Apostolic

Church of the Lord Jesus Christ, Inc., filed a civil rights complaint in the United States

District Court for the Eastern District of Pennsylvania, asserting claims against Bucks

County, Pennsylvania, Judge Robert J. Mellon, the Bucks County Office of the Clerk of

Court, and employees of that office in relation to proceedings concerning the Funches’

minor son. On October 18, 2012, the District Court dismissed with prejudice the claims

against Judge Mellon on the basis that he was immune from suit. Then, on October 31,

2012, the District Court dismissed without prejudice the Funches’ claims against the

remaining defendants, but provided the Funches with an opportunity to file an amended

complaint.

       The Funches’ amended complaint was largely the same as their original complaint.

Their claims stem from their attempt, via state court intervention, to stop their son’s tonsil

and adenoid surgery. They asserted that they filed a pleading in Bucks County, which

successfully delayed their son’s surgery, but that on May 5, 2010, Judge Mellon “vacated

his own March 29, 2010 court order,” which effectively reordered the surgery. Soon

thereafter, the Funches attempted to file several different motions and other documents

                                              2
with the Bucks County Clerk of Court (“Clerk’s office”) to again stop the surgery.

According to the Funches, the Clerk’s office would not accept the pleadings for filing

because of “racial, religious, and/or ethnic bias” against them, as the Clerk’s office knew

that if it accepted the filings, the surgery would again be stopped. The Funches’ amended

complaint asserted, among other things, that the refusal to file their papers constituted

discrimination based on race and religion and a violation of their due process rights.

         On March 22, 2013, the District Court granted the defendants’ motion to dismiss,

determining that the claims against Bucks County and the Clerk’s office were improperly

based on a theory of respondeat superior, as the Funches failed to allege the existence of

any official policy or custom as is required to proceed on a 42 U.S.C. § 1983 claim

against a municipality. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978).

The District Court also determined that the claims against court personnel in their

individual capacities must be dismissed because they were immune from suit due to their

status as “quasi-judicial” officials. See Marcedes v. Barrett, 453 F.2d 391, 392 (3d Cir.

1971).

         As an alternate basis for dismissal, the District Court determined that the Funches’

claims failed as a matter of law. First, the District Court concluded that the Funches did

not set forth a claim for discrimination under 42 U.S.C. § 1983, as the amended

complaint did not include any facts “from which [the District Court] could infer racial,

ethnic, or religious discrimination.” The District Court also dismissed the procedural due

                                               3
process claim because the Funches did not allege the denial or unavailability of adequate

post-deprivation process. Finally, to the extent that the Funches alleged that they were

denied access to the courts, the District Court determined that they should have sought

relief in the state court system.

         The Funches now appeal.

                                              II.

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

plenary review over the District Court’s decision granting a motion to dismiss under Rule

12(b)(6) of the Federal Rules of Civil Procedure. See DiGiacomo v. Teamsters Pension

Trust Fund, 420 F.3d 220, 222 n.4 (3d Cir. 2005). We will affirm the District Court’s

order.

         First, we agree with the District Court that the Funches’ claims against Bucks

County and the Clerk’s Office must be dismissed because they were improperly based on

a theory of respondeat superior. As the District Court explained, bringing a claim under

42 U.S.C. § 1983 against the County and the Clerk’s office in their official capacities

requires that the disputed action be pursuant to an official custom or policy. See Monell,

436 U.S. at 694. The Funches, however, asserted that the defendants violated official

policy by refusing to accept their documents for filing. Accordingly, their claim against

the County and the Clerk’s office in their official capacities cannot succeed.




                                              4
       Second, although we disagree with the District Court’s analysis, we agree that the

employees of the Clerk’s office were immune from suit and that the claims against them

should have been dismissed. The District Court determined that the court personnel were

immune because, under Pennsylvania Rule of Civil Procedure 205.2, they had discretion

to refuse to accept documents for filing that did not comply with the Rules of Civil

Procedure. See Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) (holding that

quasi-judicial immunity extends only to officials who perform discretionary functions).

However, the proceedings involving the Funches’ son were taking place in the

Pennsylvania Juvenile Court, and were governed by the Pennsylvania Rules of Juvenile

Court Procedure. Under Juvenile Court Rule 1121, the Clerk was required to accept all

documents presented for filing. See Pa.R.J.C.P 1121(I). This is a ministerial, not a

discretionary, function and therefore does not entitle the court personnel to quasi-judicial

immunity under Antoine. Additionally, even had the Rules of Civil Procedure applied,

the Pennsylvania Supreme Court has held that the duties of prothonotaries and clerks of

court are ministerial. See Commonwealth v. Williams, --- A.3d ----, 2014 WL 3672870,

at *4 (Pa. July 21, 2014) (“[T]he powers wielded by the clerk of courts, like those of the

prothonotary, are purely ministerial in nature.”). Accordingly, immunity of the court

personnel cannot be based on the discretionary nature of their duties.

       This does not, however, mean that the employees are not absolutely immune from

suit in this circumstance. In the Funches’ appellate briefs, they asserted that soon after

                                              5
they presented their documents to the employees in the Clerk’s office, Judge Mellon

appeared behind the Clerk’s desk and ordered that the documents not be filed. According

to the Funches, the court personnel complied with the Judge’s directive. While the

Funches did not make this assertion in their amended complaint, we agree with appellees

that, by including it in their appellate briefs, it constitutes a binding judicial admission.

See Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 211 (3d Cir. 2006) (“Judicial

admissions are concessions in pleadings or briefs that bind the party who makes them.”).

       Thus, according to the Funches, the court personnel followed the Judge’s order not

to file documents in a case over which he was presiding. The Funches claim that Judge

Mellon was not eligible for judicial immunity because this order was given “absent all

jurisdiction.” The Funches are mistaken. Assuming that Judge Mellon did order the

Clerk’s office not to file the disputed documents, we have held that “a judge does not act

in the clear absence of all jurisdiction when the judge enters an order at least colorably

within the jurisdiction of h[is] court.” Gallas v. Supreme Court of Pa., 211 F.3d 760, 771

(3d Cir. 2000). Judge Mellon was the presiding judge in the cause of action involving the

Funches’ son. The alleged order to reject the Funches’ pleadings cannot be said to be in

the “clear absence of all jurisdiction,” even if the order was done out of “malice or

corruption of motive.” See id. at 772. Accordingly, Judge Mellon was eligible for




                                               6
judicial immunity for this order.1 See id. And because Judge Mellon was judicially

immune from suit, the court personnel who carried out his facially valid order are entitled

to quasi-judicial immunity. See id. at 772-73; Kincaid v. Vail, 969 F.2d 594, 601-02

(7th Cir. 1992) (holding that the clerk who refused to accept filing of complaint at the

direction of the judge was entitled to quasi-judicial immunity). Thus, the claims against

the court personnel were properly dismissed on the basis of their quasi-judicial immunity.

       In sum, the Funches’ cannot proceed on their amended complaint, and we will

affirm the District Court’s March 22, 2013 order.2




1
  Additionally, to the extent that the Funches challenge the District Court’s October 18,
2012 dismissal with prejudice of the original claims against Judge Mellon, we affirm the
District Court’s decision to dismiss those claims under the doctrine of judicial immunity.
The actions that Judge Mellon is claimed to have taken, including vacating one of his
orders in the case over which he was presiding, were not taken in “the absence of all
jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).
2
  The Funches assert that the District Court erred in denying their request for discovery
on the Monell claim. We disagree. The District Court properly disposed of this request.
                                              7
