*AMENDED CLD-043                                      NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                               No. 12-3068
                               ___________

                         EDWARD D. TORRES,
                         a/k/a Rev. Eddie Torres,
                                        Appellant

                                     v.

        SARA DAVIS, Board of Education of Camden Public Schools;
                  DANA REDD, Mayor of Camden;
        COMMISSIONER NEW JERSEY BOARD OF EDUCATION;
               ATTORNEY GENERAL NEW JERSEY
              ____________________________________

                Appeal from the United States District Court
                        for the District of New Jersey
                       (D.C. Civil No. 1-11-cv-06190)
                District Judge: Honorable Robert B. Kugler
                ____________________________________

              Submitted for Possible Summary Action Pursuant
                 to Third Circuit LAR 27.4 and I.O.P. 10.6
                            November 16, 2012

         Before: RENDELL, JORDAN and GARTH, Circuit Judges

                    (Opinion filed: December 4, 2012)
                                _________

                       OPINION OF THE COURT
                             _________
PER CURIAM

       Edward Torres, proceeding pro se, appeals an order from the United States District

Court for the District of New Jersey granting the motions to dismiss of Sara Davis, the

Attorney General of the State of New Jersey, and the Commissioner of the State of New

Jersey Board of Education. Torres also appeals the District Court’s order denying his

motion to appoint pro bono counsel. Finally, Torres filed in this Court two separate

motions for injunctive relief. Because this appeal does not present a substantial question

we will summarily affirm for largely the same reasons as given in the District Court’s

order. We deny Torres’s motions for injunctive relief.

                                             I.

       Because we write for the parties, who are well acquainted with the case, we will

recount only the essential facts and procedural history. In October 2011, Torres filed a

civil complaint in the District Court. In his complaint Torres named Sara Davis; Dana

Redd, Mayor of the City of Camden; the Attorney General of the State of New Jersey;

and the Commissioner of the State of New Jersey Board of Education (the

“Commissioner”). Torres generally alleged that the Camden City Board of Education

(the “Board”), of which Davis is a member, violated his civil rights when they did not

include proposed referendum questions he had submitted in a special election ballot. In

particular, Torres argued that his First Amendment rights were violated, his equal

protection rights under the Fourteenth Amendment were violated, and his New Jersey

state constitutional rights were violated.
                                             2
       Two of the referendum questions Torres proposed dealt with the addition of

religious content to the Camden City Public Schools’ curriculum and the third addressed

the rights of prisoners to vote in school board elections. From 2000 to 2010, Torres

regularly submitted proposed referendum questions to the Board. The Board denied

Torres’s referendum questions, concluding that the Board did not have jurisdiction to

include them on a special election ballot and that inclusion of the questions would violate

the United States Constitution. Torres appealed the Board’s decision in 2005, and the

Commissioner affirmed the decision. Beginning in 2007, Torres amended his proposed

referendum questions. The amended referendum questions excluded the question about

prisoner voting rights and reframed a question that dealt with prayer as “a session in

prayer with one minute of silence to be used solely at the discretion of the individual.”

The Board continued to deny Torres’s annual referendum questions. He appealed the

decision again in 2010 and the Commissioner affirmed.

       In his complaint, Torres sought injunctive relief directing Defendants to include

the referendum questions in a special election and ten million dollars in damages.

Defendants filed motions to dismiss pursuant to Federal Rules of Civil Procedure

12(b)(1) and (6), and in June 2012 the District Court granted Defendants’ motions to

dismiss pursuant to Rule 12(b)(6). Torres appealed and the Clerk alerted the parties that

the appeal was being considered for summary action. Davis responded and argued that

summary action was appropriate and the District Court’s order should be affirmed.

Torres did not respond to the notice of possible summary action, but did file a petition for
                                             3
an injunction requesting the court to direct the Board to submit the referendum questions

to the November general election ballot. Davis responded to the petition and argued that

Torres did not satisfy the standard for issuing an injunction. Torres later filed a motion

for injunctive relief directing Mayor Redd to cease restricting his First Amendment

rights.

                                              II.

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

the District Court’s decision to not appoint counsel for abuse of discretion. See Tabron v.

Grace, 6 F.3d 147, 155 & n.4 (3d Cir. 1993). Our review of the District Court’s order

granting the Defendant’s motion to dismiss is plenary. See AT & T Corp. v. JMC

Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006). Plenary review requires that we accept

as true all of the allegations in the complaint and draw all inferences from the allegations

in the light most favorable to the plaintiff. See Phillips v. Cnty. of Allegheny, 515 F.3d

224, 231 (3d Cir. 2008). A motion to dismiss should be granted if the plaintiff is unable

to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard requires “more

than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Rather, the “[f]actual allegations must be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555. We may summarily

affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                              III.
                                               4
       Torres’s complaint seeks money damages for alleged violations of his

constitutional rights. Although he does not identify a specific basis for relief, his

complaint may be liberally construed as a claim for relief under 42 U.S.C. § 1983. 1 See

United States ex rel. Birnbaum v. Dolan, 452 F.2d 1078, 1079 (3d Cir. 1971). To state a

claim under § 1983, the plaintiff must allege that the defendant acted under color of state

law to deprive him of a right secured by the federal Constitution or federal law. See

Gomez v. Toledo, 446 U.S. 635, 640 (1980).

       The bulk of Torres’s allegations concern actions taken by Davis while a member

of the Board and briefly address Mayor Redd’s alleged wrongdoing. Torres made scant

allegations concerning the conduct of the Attorney General and the Commissioner and no

allegations concerning conduct taken outside of their official capacity. Thus, we agree

with the District Court that the Attorney General and the Commissioner are immune from

suit for money damages due to sovereign immunity. U.S. Const. amend. XI; Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

       Next, Torres did not sufficiently state a claim against the remaining defendants

upon which relief can be granted. Torres claimed that Defendants’ conduct, particularly

that of Davis, violated his First Amendment right to petition government for a redress of

a grievance, right to petition for posting of referendum questions, and the right to the free

exercise of religion. Torres argued that the Board’s conduct violated his petition rights,


1
  Torres also stated that he was entitled to damages due to Defendants’ defamation and
reckless endangerment. However, other than his invocation of these concepts in his
                                              5
but “[t]he Constitution does not grant to members of the public generally a right to be

heard by public bodies making decisions of policy.” Minn. State Bd. for Comty. Colls. v.

Knight, 465 U.S. 271, 283 (1984). Moreover, the Constitution does not mandate that

states permit citizens “the right to pass legislation through a referendum.” Molinari v.

Bloomberg, 564 F.3d 587, 597 (2d Cir. 2009). In sum, the First Amendment does not

guarantee citizens a right to pass legislation, but if the states provide such a right the First

Amendment protects speech incident to that right. Meyer v. Grant, 486 U.S. 414, 421-24

(1988); Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir.) (en

banc), cert. denied, 549 U.S. 1245 (2007).

       Under New Jersey law, citizens generally cannot pass legislation through a

referendum, but after the governing body of a municipality or county adopts a resolution

authorizing referendum questions citizens can, as Torres attempted to do, propose

nonbinding public questions to be included on a ballot “to ascertain the sentiment of the

legal voters.” N.J. Stat. Ann. § 19:37-1 (West 2011). However, as the District Court

noted, in this case the adoption of a resolution authorizing referendum questions such as

Torres’s is a discretionary matter that is decided by the governing body of the City of

Camden. Id. at § 19:37-1 to 1.1. The Defendants did not limit or burden Torres’s ability

to propose referendum questions or his speech incident to his proposals. Accordingly,

Torres’s First Amendment rights were not violated.




request for damages he provides no allegations, discussion, or evidence in support.
                                               6
       Next, Torres’s allegation that Defendants’ conduct restricted his right to the free

exercise of religion is insufficiently pled and the District Court was correct to dismiss the

claim. The Free Exercise clause of the First Amendment is violated when the

government has “placed a substantial burden on the observation of a central religious

belief or practice” and no “compelling governmental interests justifies the burden.”

Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). Torres has not come forward with

facts that make it plausible that, by declining to approve Torres’s referendum questions,

the Defendants placed a substantial burden on his religious beliefs or practices.

                                             IV.

       Torres also alleged that Defendants’ discrimination against him violated his Equal

Protection rights under the Fourteenth Amendment. A claim under the Equal Protection

clause requires an allegation that the plaintiff “is receiving different treatment from that

received by other individuals similarly situated.” Kuhar v. Greensburg-Salem Sch. Dist.,

616 F.2d 676, 677 n.1 (3d Cir. 1980). We agree with the District Court that Torres did

not identify what particular class he belonged to for equal protection purposes and how

he was treated differently than similarly situated individuals. Thus, Torres failed to state

a claim for violation of his Equal Protection rights upon which relief could be granted.

       Torres also alleged, but did not distinctly set forth, that Defendants violated his

rights to equal protection and to free exercise of religion as provided by the New Jersey

Constitution. We agree with the District Court that Torres did not argue or establish that

the New Jersey constitutional right to free exercise is more extensive than that guaranteed
                                              7
by the Constitution, and therefore, for the reasons stated above he failed to state a claim.

We also agree with the District Court that Torres failed to meet the standard for an equal

protection claim under the New Jersey constitution. See State v. Chun, 943 A.2d 114,

142 (N.J. 2008). Significantly, Torres provided conclusory accusations and no evidence

supporting his claim.

                                               V.

       We next address Torres’s motion seeking an injunction directing Defendants to

include his referendum questions on the November general election ballot, which was

filed on September 19, 2012. We deny Torres’s motion for an injunction because, as

discussed above, he has not made the requisite strong showing that he would prevail on

the merits of his appeal.2 NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d

Cir. 1999) (identifying the factors to evaluate in deciding whether to grant an injunction).

We additionally deny Torres’s motion for an injunction directing Mayor Redd to stop

restricting his First Amendment rights because the injunction was not first filed in the

District Court. See Fed. R. App. P. 8(a)(1).

                                             VI.

       As this appeal presents no substantial question, we will summarily affirm. See 3d

Cir. L.A.R. 27.4; I.O.P. 10.6. Torres’s motions for injunctive relief are denied.



2
  Additionally, we find that the District Court did not abuse its discretion in denying
Torres’s motion for appointment of pro bono counsel. Further, to the extent that Torres
requests counsel on appeal, the motion is denied.
                                               8
