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


12-7-2007

Johnson v. Intl Brhd Teamsters
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1790




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-1790
                                     ___________

                             GEORGE E. JOHNSON JR.,

                                          VS.

   INTERNATIONAL BROTHERHOOD OF TEAMSTERS (LOCAL 830); JOSEPH
             BROCK, PRESIDENT; SCOTT MICHEL, TRUSTEE

                       ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 06-cv-03699)
                      District Judge: Honorable Louis H. Pollak
                            _________________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   October 23, 2007

             Before:    MCKEE, SMITH and CHAGARES, Circuit Judges

                           (Opinion filed: December 7, 2007)

                                     ___________

                                      OPINION
                                     ___________
PER CURIAM

      On March 9, 2007, the District Court entered an order granting the defendants’

Rule 12(b)(6) motion to dismiss. We will affirm for the reasons discussed below.
                                                I.

          On March 18, 2004, Jerith Manufacturing Co. (“Jerith”) accused pro se plaintiff

Johnson of misconduct at work and terminated his employment as a mechanic. The next

day, Johnson filed a grievance with his union, the International Brotherhood of Teamsters

(Local 830), regarding the termination.1 The union held a hearing at which Johnson

claims that he was “repeatedly denied the opportunity to confront and/or cross-examine

the witnesses against him. . . .” Johnson filed another grievance on March 31, 2004,

claiming that he had been terminated without just cause. Jerith refused to hear the March

31st grievance because it was essentially the same as the one filed on March 19th. Then,

in August 2004, union president Joseph Brock informed Johnson that the union would not

pursue his unjust discharge grievance to arbitration.

          Two years later, Johnson filed the instant lawsuit in the U.S. District Court for the

Eastern District of Pennsylvania, which claimed, among other things, that the union,

Brock, and union officer Scot Michel violated 42 U.S.C. § 1983 by breaching their duty

of fair representation and violating his due process rights apparently during the March 19,

2004 hearing, which Johnson describes as a “quasi-judicial tribunal.” Johnson filed an

amended complaint on September 22, 2006, which the defendants moved to dismiss six

days later.




          1
                 This was Johnson’s third grievance in a month regarding his employment at
Jerith.

                                                 2
       On March 9, 2007, the District Court entered a memorandum order granting the

motion to dismiss because: (1) Johnson could not sustain a claim under 20 U.S.C. §

1095(a) because the defendants (the union and its officers) did not employ Johnson; (2)

Johnson could not sustain a claim under 42 U.S.C. § 1983 against the defendants because

they were not state actors; and (3) any claim alleging that the defendants breached their

duty of fair representation 2 was barred by the statute of limitations. Johnson timely

appealed from the District Court’s order, but only challenges the District Court’s finding

that neither the union nor its officers were state actors within the meaning of 42 U.S.C. §

1983.3 In particular, Johnson avers that because the union implements and enforces the

laws “with regard to employees and in this capacity, they are, in fact acting under color of

state law.”

                                             II.

      We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review of a

dismissal for failure to state a claim. Angstadt v. Midd-West Sch. Dist., 377 F.3d 338,



       2
              Johnson did not specifically allege a claim for breach of the duty of fair
representation, but the District Court construed the pro se complaint liberally to include
such a claim.

       3
               Johnson has waived his right to appeal from the decision regarding his
claim under 20 U.S.C. § 1095(a), as well as the finding that a claim against defendants for
breaching their duty of fair representation was time-barred. See In re Suprema
Specialties, Inc. Sec. Litig., 438 F.3d 256, 286 n.17 (3d Cir. 2006) (“[I]t is well-settled in
this court that an ‘appellant’s failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.’”) (internal citation omitted).


                                              3
342 (3d Cir. 2004). As the District Court correctly assessed, Johnson’s claim that the

union and its officers violated 42 U.S.C. § 1983 cannot be sustained because the

defendants are not state actors, nor did they act under color of state law.

       As the District Court explained, a claim for a violation of civil rights under 42

U.S.C. § 1983 can only be sustained if a defendant deprives a plaintiff of a federal

constitutional or statutory right either as a state actor or while acting under color of state

law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). However, as the

District Court correctly determined, labor unions are generally not state actors—they are

private entities. See Ciambriello v. County of Nassau, 292 F.3d 307, 323-24 (2d Cir.

2002). And as to whether the union and its officials acted under color of state law, “the

ultimate issue is . . . [whether] the alleged infringement of federal rights is ‘fairly

attributable to the state[.]’” Jackson v. Temple Univ. of the Commonwealth Sys. of

Higher Ed., 721 F.2d 931, 933 (3d Cir. 1983) (internal citations omitted). As in Jackson,

Johnson has failed to set forth facts “suggesting that the state was responsible for the

Union or that the Union was acting under color of state law,” either in its conduct of the

grievance hearing or in its decision not to bring Johnson’s grievance to arbitration. See

id. Accordingly, the District Court correctly determined that Johnson could not proceed

under § 1983 against the union or its officials.

       For the foregoing reasons, we will affirm the District Court’s order entered on

March 9, 2007.



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