                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-3044
                                       ___________

                           EDWARD THOMAS KENNEDY,
                                               Appellant

                                             v.

               COMMONWEALTH OF PENNSYLVANIA;
    THOMAS WASSERMAN WOLF, in his official capacity and individual capacities

                      _____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 5-18-cv-03374)
                      District Judge: Honorable C. Darnell Jones, II
                      _____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 21, 2018

              Before: KRAUSE, SCIRICA and NYGAARD, Circuit Judges

                           (Opinion filed: December 24, 2018)

                                       ___________

                                        OPINION*
                                       ___________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Pro se appellant Edward Kennedy appeals from the District Court’s dismissal of

his complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For

the reasons that follow, we will affirm.

       In August 2018, Kennedy sought leave in the United States District Court for the

Eastern District of Pennsylvania to proceed in forma pauperis (“IFP”) with a complaint

wherein he named the Commonwealth of Pennsylvania and Governor Thomas

Westerman Wolf as defendants.1 Kennedy asked for damages as well as declaratory and

injunctive relief as a result of defendants’ alleged actions in connection with his arrests in

June and August 2017, and his incarceration from August 28 through August 30, 2017.

Kennedy claimed that his complaint presented a federal question, as well as causes of

action for “trespass,” “trespass on the case,” “trespass on the case – vicarious liability,”

and “failure to provide a republican form of government.”

       After concluding that Kennedy was indigent for purposes of 28 U.S.C. § 1915, the

District Court screened the complaint under § 1915(e)(2)(B) and ultimately dismissed it

for failure to state a viable claim. This appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291. Our review of a dismissal pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii) is de novo. Allah v. Seiverling, 229 F.3d 220, 223 (3d

Cir. 2000). “To survive a motion to dismiss, a complaint must contain sufficient factual


1
 Kennedy erroneously refers to the Governor as Thomas Wasserman Wolf, rather than
Thomas Westerman Wolf.
                                         2
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

       For essentially the reasons set forth in its Memorandum Opinion, we agree with

the District Court’s dismissal of Kennedy’s complaint for failure to state a claim. The

Commonwealth of Pennsylvania is entitled to Eleventh Amendment immunity from

claims under § 1983, and is not considered to be a “person” subject to liability for

purposes of § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65-66 (1989).

With respect to Governor Wolf, the District Court properly concluded that vicarious

liability is inapplicable to § 1983 actions. See Iqbal, 556 U.S. at 676 (citing Monell v.

New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). Given that the

complaint is devoid of any plausible suggestions that Governor Wolf either maintained a

policy or custom which caused Kennedy the alleged harm or that Governor Wolf had any

personal involvement in the referenced events, the District Court was correct to conclude

that he failed to state a viable claim. See Barkes v. First Corr. Med., Inc., 766 F.3d 307,

316 (3d Cir. 2014), rev’d on other grounds, Taylor v. Barkes, 135 S. Ct. 2042 (2015).

We further agree that Kennedy’s claims regarding the incidents of June and August 2017

are duplicative of those asserted in Kennedy v. Hanna, E.D. Pa. Civ. No. 18-cv-00977.

The District Court’s dismissal, without prejudice, of the claims involving the incidents of




                                               3
June and August 2017 specifically allows Kennedy to proceed with those claims in E.D.

Pa. Civ. No. 18-cv-00977, which is pending before the same District Court judge.2

      Kennedy appears to be arguing in his Informal Brief that the District Court

exceeded its “jurisdiction or authority” by dismissing his complaint under §

1915(e)(2)(B)(ii). See Informal Br. at 1-2, 6. However, the District Court had

jurisdiction over Kennedy’s complaint pursuant to 28 U.S.C. §§ 1331 and 1367. Given

the conclusions of the District Court’s screening, dismissal of the complaint was proper

under § 1915(e)(2)(B)(ii). The remaining conclusory allegations in Kennedy’s brief are

baseless and do not warrant further discussion.

      Accordingly, we will affirm the judgment of the District Court.




2
 The District Court did not err in denying leave to amend. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
                                             4
