                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 12-4227
                                   ______________

                              TIMOTHY M. THOMAS,
                                                             Appellant

                                          v.

            DIANA MARIE THOMAS; DAVID M. DOUGHERTY;
      DANIEL DIEHL; KATHY JO WINTERBOTTOM; RONALD WEAGLEY
                           ______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civ. No. 1-11-02336)
                      District Judge: Hon. William W. Caldwell
                                   ______________

                      Submitted under Third Circuit LAR 34.1(a)
                                   June 14, 2013

    Before: McKEE, Chief Judge, and AMBRO and GREENBERG, Circuit Judges

                            (Opinion Filed: June 19, 2013)
                                  ______________

                             OPINION OF THE COURT
                                 ______________


GREENBERG, Circuit Judge.

      This matter comes on before this Court on appeal from orders of the District Court

entered June 15, 2012, and, after amendment of the complaint, on October 15, 2012,

dismissing appellant Timothy M. Thomas’s complaint pursuant to Fed. R. Civ. P.
12(b)(6) against his wife, Diana Marie Thomas, as well as against her father, her attorney,

and certain Pennsylvania state troopers. The case arises from matrimonial difficulties

between Timothy, a Pennsylvania state trooper, and Diana.

       Following his separation from Diana, Timothy brought the complaint in this action

against defendants making many claims against them under both state and federal law.

The District Court listed the claims in its opinions and we therefore need not describe

them except for Timothy’s claim against defendant Daniel Diehl, a Pennsylvania state

trooper, under 42 U.S.C. § 1983 that we address below. At this point with respect to

Timothy’s claim against Diehl, we merely set forth that Timothy alleges that Diehl

violated Timothy’s rights under the Fourteenth Amendment through actions that deprived

Timothy of his right to privacy and that infringed on the integrity of his familial

relationships. Inasmuch as the District Court found that Timothy’s complaint did not

state a valid claim for relief under any of the theories that Timothy advanced, it dismissed

the action in the orders that we reference above with accompanying opinions.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367 and

we have jurisdiction under 28 U.S.C. § 1291. We are exercising plenary review on this

appeal. See Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004).

       We are in full accord with the result that the District Court reached and will affirm

its orders essentially for the reasons that it set forth in its opinions except that in one

respect we will affirm its order for different reasons. In Timothy’s complaint he claims

that Diana demanded that he leave their marital home and that he “complied with her

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demands.” App. at 42. He then indicates that she called Diehl, who was on duty at the

Pennsylvania state police barracks in Chambersburg, “after she had forced [plaintiff] to

leave the family home.” Id. at 42-43. According to Timothy, Diehl then told Diana to

leave the family home and go to her parents’ home in Upper Uwchlan Township,

Pennsylvania. Timothy alleges that Diehl then called the Upper Uwchlan police with

baseless claims that Timothy was a “loose cannon” and a “prime candidate for

murder/suicide.” Id. at 43. Timothy alleges that as a consequence of Diehl’s actions the

Upper Uwchlan police surrounded Diana’s parents’ residence, thereby “humiliat[ing] and

embarrass[ing him.]” Id. at 44. Timothy then charges that Diehl unjustifiably, “engaged

in a policy designed to divide the Thomas’s and destroy the relationship that held the

family together [and] intentionally created an inaccurate and pernicious group of

communications and accusations that were intended to create a matrix of domestic

relations impediments to communication and any possible resolution of the differences

between the Thomas’.” Id.

       After reviewing the complaint the District Court indicated that “[n]ot all acts of an

on-duty state employee [are] state action for the purposes of [42 U.S.C.] section 1983,”

and that “a police officer’s purely private acts which are not furthered by any actual or

purported state authority are not acts under color of state law,” citing Bonenberger v.

Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997), and Barna v. City of Perth Amboy, 42

F.3d 809, 816 (3d Cir. 1994). App. at 29. The District Court then indicated that “when

Diehl contacted the Upper Uwchlan Township Police, he did not do so under color of

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state law [and a]s Diehl points out, anyone could have called the local police and made

the same statements. Diehl’s status as a state trooper did not make the call possible.” Id.

at 30. Thus, the Court believed that Timothy’s “1983 claim against [Diehl] fails for lack

of action under color of state law.” Id.

       We reject the District Court’s analysis on this point though we agree with its

result. It is true that if Diana had called a private friend to report the problem between

Timothy and her that she described to Diehl and the friend had made a call to the Upper

Uwchlan police requesting the protection that the police in that municipality provided,

there would not have been a basis for a viable section 1983 claim against the friend, for

he would not have been acting under color of state law in making the call. But when an

on-duty state trooper makes a call from his barracks reporting a potentially dangerous

situation to a local police department, surely he is acting in his capacity as a police officer

and therefore he is acting under color of state law for the purpose of a 42 U.S.C. § 1983

action against him.

       Notwithstanding our rejection of the District Court’s reasoning, we see no reason

to reverse its order with respect to Diehl. We, of course, can affirm an order of a district

court if we agree with the substance of the order even if we do not agree with the court’s

reasoning in reaching its result. See, e.g., Nugent v. Ashcroft, 367 F.3d 162, 168 (3d Cir.

2004). In this case it is evident from the complaint that, when Diana called him, Diehl

was confronted with what seemed to be a potentially volatile situation. Indeed, the

complaint alleges that when Diehl told Diana to flee the family home he was doing so in

                                              4
agreement with her. Consequently, the fair inference to be drawn from the complaint is

that Diana had determined to leave the marital premises before she spoke to Diehl. In

any event, regardless of Diana’s intentions before she called Diehl, when she called him

and described the volatile situation that she faced Diehl reasonably could have believed

that she was in a particularly dangerous position because Diehl knew that Timothy had

access to firearms. At that point, it was perfectly appropriate for Diehl to notify the

Upper Uwchlan police of a potential problem so that they could take protective steps.

Surely such actions by Diehl could not give rise to his liability under 42 U.S.C. § 1983,

as he did nothing wrong. In reaching our conclusion, we observe that our experience

causes us to understand that it is not unusual after a tragic event to learn that persons in

positions of authority were aware of the dangerous situation that later led to that event but

did not take steps to prevent that outcome from happening. Here Diehl did not have to sit

inertly in the Chambersburg barracks after he received Diana’s call and hope for the best.

       We also point out that Timothy’s complaint against Diehl must fail because the

claim of damages that Timothy attributes to Diehl’s action is implausible on its face. See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007).

According to Timothy’s complaint, “Diehl engaged in a policy designed to divide the

Thomas’s and destroy the relationship that held the family together” and made

accusations “that were intended to create a matrix of domestic relations impediments to

communication and any possible resolution of the differences between the Thomas’.”

App. at 44. Thus, Timothy is attributing the collapse of his marriage to Diana to Diehl’s

                                              5
intervention. But the complaint alleges that Diana demanded that Timothy leave the

family premises before she talked to Diehl. Moreover, as we already have indicated, we

draw an inference from the complaint that Diana intended to flee the premises before she

talked to Diehl. In any event, even if Diana would not have left the premises if she had

not talked to Diehl, it is hardly plausible to suggest that Diehl caused the breakdown of

the marriage.

       For the foregoing reasons and for the reasons the District Court set forth, we will

affirm the orders of June 15, 2012, and October 15, 2012.




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