                                                       NOT PRECEDENTIAL


               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         _____________

                             No. 15-4107
                            _____________


                       DOUGLAS G. KUNKLE,

                                                   Appellant.

                                   v.

ANDREA NAUGLE, INDIVIDUALLY AND AS CLERK OF JUDICIAL RECORDS
       FOR THE COUNTY OF LEHIGH (AKA CLERK OF COURTS OR
     PROTHONOTARY); THE COUNTY OF LEHIGH; WILLIAM BERNDT,
 INDIVIDUALLY AND AS COURT ADMINISTRATOR FOR LEHIGH COUNTY;
CAROL K. MCGINLEY, INDIVIDUALLY AND AS PRESIDENT JUDGE FOR THE
           COURT OF COMMON PLEAS OF LEHIGH COUNTY

              _____________________________________

             On Appeal from the United States District Court
                 for the Eastern District of Pennsylvania
                   (District Court No.: 5-15-cv-00896)
               District Judge: Honorable Edward G. Smith
              _____________________________________

               Submitted Under Third Circuit LAR 34.1(a)
                           on July 12, 2016


                        (Filed: August 19, 2016)


         Before: SMITH, JORDAN and RENDELL, Circuit Judges.
                                      ____________

                                      O P I N I O N*
                                      ____________


RENDELL, Circuit Judge,

       Pro Se Appellant Douglas G. Kunkle, Esq. appeals the District Court’s order

dismissing his claim pursuant to Defendants’ Rule 12(b)(6) motion. Kunkle raised a

variety of claims against Defendants after they denied his application to participate in an

electronic court filing (“e-filing”) pilot program sponsored by the Court of Common

Pleas of Lehigh County. The District Court dismissed the complaint on immunity and

Article III standing grounds. For the reasons stated below, we will affirm the District

Court’s order.

 I.    Factual Background

       This lawsuit arose from Kunkle’s rejection from an e-filing pilot program

sponsored by the Court of Common Pleas of Lehigh County. The pilot program allowed

those accepted to electronically file civil legal documents before e-filing was available to

the public in order to ensure the adequacy of the IT platform. Defendant President Judge

McGinley, with assistance from Defendant Court Administrator Berndt and Defendant

Prothonotary Naugle, announced the program in 2013. Judge McGinley stated that she

would open the pilot program to select lawyers and firms, and that she would review

applications and notify those accepted. After Kunkle applied for the pilot program,


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                             2
Defendant Berndt, as Court Administrator and on behalf of Judge McGinley, informed

Kunkle that he had not been selected. Berndt stated that, although not all applicants were

accepted, “hopefully the pilot will be successful so that it can be expanded quickly to all

those filing civil actions.” (App. Vol. II at 62).

       Kunkle was quite vocal in airing his grievances regarding this rejection. At a

Lehigh County commissioner meeting, Kunkle complained that “it just seems to me to be

a very affront to equal protection of the law that one attorney can use the electronic filing

system 24/7 while the other attorney has to hand file his.” (App. Vol. II at 20). At the

meeting, Defendant Berndt clarified that only a pilot program was currently in place. He

spoke on behalf of President Judge McGinley, emphasizing that she worked meticulously

on the IT platform and wanted to ensure that e-filing worked well before she opened it to

the public. Kunkle also sent several emails to county officials demanding money

damages for being rejected.

       Kunkle later filed a complaint against four defendants—Judge McGinley, Andrea

Naugle, and William Berndt individually and in their official capacities, and the County

of Lehigh—and later an amended complaint in which he stated the following claims:

Deprivation of Equal Privileges and Immunities to Court Access, First Amendment

Retaliation and Deprivation of Right to Petition, Conspiracy to Deprive Equal Privileges

and Immunities to Court Access (all under 42 U.S.C. § 1983 and § 1985); Dissolution of

Home Rule Charter as Unduly Vague Pursuant to the First and Fourteenth Amendments

of the United States Constitution; and violation of the Americans with Disabilities Act

(“ADA”). Kunkle requested monetary damages in the amount of $1,000 for every day he

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could not access the pilot program (638 days, by his calculation) and $150,000 for his

First Amendment claim. Kunkle was granted full access to the e-filing system on March

16, 2015 when it was published on the Unified Judicial System Web Application Portal.

       Defendants filed a motion to dismiss the claim for failure to state a claim for

which relief can be granted pursuant to Fed. R. Civ. Pro. 12(b)(6). The District Court

granted the motion as to counts one and three on Eleventh Amendment immunity

grounds, and for count two on the grounds that Kunkle failed to legally support the claim.

It dismissed count four because Kunkle lacked Article III standing.

       As the District Court noted, Kunkle’s complaint was unclear, making the precise

nature of the claims difficult to discern. The District Court addressed the claims as

follows: claims under 42 U.S.C. § 1983, § 1985, and the Dissolution claim. The ADA

claim was not appealed. We take guidance from the District Court and frame our

discussion of Kunkle’s claims in a similar manner.

II.    Discussion1

           a. 42 U.S.C. § 1983 and § 1985 Claims

       The District Court correctly relied upon Eleventh Amendment immunity to

dismiss claims under 42 U.S.C. § 1983 and § 1985 against Defendants President Judge


       1
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. This court exercises plenary review over the
granting of a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6) for failing to state a
claim upon which relief may be granted. See Children’s Seashore House v. Waldman,
197 F.3d 654, 658 (3d Cir. 1999). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, . . . that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted).
                                              4
McGinley, Court Administrator Berndt, and Prothonotary Naugle in their personal and

official capacities. First, the District Court properly dismissed the claims against the

defendants in their official capacities because “[n]either a State nor its officials acting in

their official capacities are ‘persons’ under § 1983.” Hafer v. Melo, 502 U.S. 21, 26

(1991) (quoting Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)). The same

holds true for claims under 42 U.S.C. § 1985. See Waits v. McGowan, 516 F.2d 203, 205

(3d Cir. 1975).

       Second, Defendants McGinley, Berndt and Naugle, in their individual capacities,

are protected by qualified immunity. Qualified immunity protects “government officials

performing discretionary functions . . . from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Kunkle claims that the defendants engaged in a conspiracy to deprive him of his

Fourteenth Amendment rights by excluding him from the e-filing pilot program.

However, we find no reason to believe that acceptance into an e-filing pilot program is a

clearly established right of which a reasonable person would have been aware, so the

defendants are entitled to protection through qualified immunity.2


       2
         Further, Berndt and Naugle, as they were acting as Court Administrator and
Prothonotary, respectively, are entitled to quasi-judicial immunity. See Gallas v.
Supreme Court of Pennsylvania, 211 F.3d 760, 773 (3d Cir. 2000) (“[C]ourt personnel
are entitled to absolute quasi-judicial immunity for their alleged acts . . . pursuant to the
judge’s instructions.”) (quoting Dellenbach v. Letsinger, 889 F.2d 755, 763 (7th
Cir.1989)).


                                               5
       Third, the County of Lehigh is not liable because the pilot program was not

official municipal policy, which is required under Monell v. Dep’t of Soc. Servs. of City

of New York. 436 U.S. 658, 691 (1978) (“[T]he language of § 1983, read against the

background of the same legislative history, compels the conclusion that Congress did not

intend municipalities to be held liable unless action pursuant to official municipal policy

of some nature caused a constitutional tort.”); see also Pembaur v. City of Cincinnati, 475

U.S. 469, 481-82 (1986) (“The fact that a particular official—even a policymaking

official—has discretion in the exercise of particular functions does not, without more,

give rise to municipal liability based on an exercise of that discretion.”).

       For these reasons, Kunkle cannot bring these claims against Defendants

McGinley, Berndt and Naugle in their official or individual capacities, or against the

County of Lehigh.



          b. The Dissolution Claim

       In this claim, Kunkle seeks dissolution of the County of Lehigh Home Rule

Charter because it is unduly vague and “causes great confusion regarding the

fundamental rights of its officers and citizenry.” (App. Vol. II at 33). The District Court

properly dismissed count four by finding that Kunkle does not have Article III standing.

As the party invoking federal jurisdiction, Kunkle bears the burden of establishing

standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).       In Lujan, the

Supreme Court held that such claims resting upon a “generalized grievance, [are]



                                              6
inconsistent with the framework of Article III because the impact on [plaintiff] is plainly

undifferentiated and common to all members of the public.” 504 U.S. at 575 (internal

quotation marks omitted) (quoting United States v. Richardson, 418 U.S. 166, 171, 176-

77 (1974)). Kunkle does not allege that the Home Rule Charter directly injured him in

any way, and the alleged general confusion is not sufficient to establish Article III

standing. The District Court thus properly dismissed count four.

III.   Conclusion

       For the foregoing reasons, the District Court properly dismissed the complaint.




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