DLD-156                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 11-4462
                                       ___________

                           JOSEPH CLIFFORD MALCOMB,
                                            Appellant

                                             v.

RACHEL DIETZ, Ambridge Police Officer; CHIEF OF POLICE ROMUTIS, Ambridge
Police Chief; MARTIN V. SCHULTE, Magistrate Judge; JANET DOLAN, Director of
                PenDot; JOHN DOHANICH, Common Pleas Judge
                   ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-11-cv-00212)
                      District Judge: Honorable Arthur J. Schwab
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 5, 2012
              Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                              (Opinion filed: April 10, 2012)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Joseph Clifford Malcomb, proceeding pro se, appeals from an order of the United

States District Court for the Western District of Pennsylvania dismissing his civil rights
action brought pursuant to 42 U.S.C. §§ 1983 and 1985(3). We will summarily affirm

the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       Malcomb alleged that he was wrongly charged and convicted of a summary traffic

citation for failure to stop at a red signal. The traffic citation was issued by Officer

Rachel Dietz of the Ambridge Borough Police Department on December 10, 2007. On

that date, however, Malcomb was incarcerated for technical parole violations. In May

2008, Magisterial District Judge Martin Schulte notified Malcomb that his driving

privileges would be suspended because he failed to respond to the citation. Malcomb

wrote several letters to the Magisterial District Court explaining that he could not have

committed the offense because of his incarceration.1 Nevertheless, Malcomb was found

guilty of the summary offense. As a result, PennDOT suspended his driving privileges.

Malcomb filed a timely appeal to the Court of Common Pleas of Beaver County. In

those proceedings, Common Pleas Judge John Dohanich denied Malcomb’s motion for

appointment of counsel and request for a “transport order.” Ultimately, on March 31,

2009, the traffic citation charge was withdrawn. By letter dated May 14, 2009, the Clerk

of the Court of Common Pleas provided Malcomb with a copy of his “summary appeal




1
  Malcomb also asked the Pennsylvania Department of Transportation (“PennDOT”) to
refrain from suspending his driver’s license. In response, Janet Dolan, Director of
PennDOT’s Bureau of Driver Licensing, notified Malcomb that his driving record would
be updated if he provided appropriate documentation that he had been found not guilty of
the traffic offense.

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order dismissing your charge and sustaining your appeal, meaning you were found not

guilty.”

       On February 15, 2011, Malcomb filed a complaint pursuant to 42 U.S.C. §§ 1983

and 1985. He sought compensatory and punitive damages based on allegations of a

denial of due process, malicious prosecution, discrimination, intentional infliction of

emotional distress, and a conspiracy to violate his civil rights. Malcomb named as

defendants Officer Dietz and the Chief of the Ambridge Police Department; Judges

Sculte and Dohanich (the “judicial defendants”); and Janet Dolan, the Bureau of Driver

Licensing Director. The judicial defendants filed a motion to dismiss, arguing, inter alia,

that they were protected by the doctrine of judicial immunity. A Magistrate Judge held

that the judicial defendants were absolutely immune from individual liability and that the

claims against them in their official capacity were barred by the Eleventh Amendment.

The Magistrate Judge recommended dismissing the claims against the remaining

defendants, stating that Malcomb’s allegations of malicious prosecution – the only

remaining claim not barred by the applicable statute of limitations − was deficient

insofar as he has failed to demonstrate that he suffered a deprivation of liberty as a

consequence of the traffic citation proceedings. Over Malcomb’s objections, the District

Court adopted the Magistrate Judge’s Report and Recommendation, granted the judicial

defendants’ motion to dismiss, and dismissed the complaint against the remaining

defendants under 28 U.S.C. §1915A, stating that it would be futile to allow Malcomb to

amend his complaint. Malcomb appealed.
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       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise

plenary review over the District Court’s dismissal. Allah v. Seiverling, 229 F.3d 220,

223 (3d Cir. 2000). We construe the complaint liberally, Haines v. Kerner, 404 U.S. 519,

520 (1972), and may affirm on any basis supported by the record. Fairview Twp. v.

EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985). Dismissal is proper if a party fails to allege

sufficient factual matter, which if accepted as true, could “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We may summarily

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

       The District Court properly granted the judicial defendants’ motion to dismiss. “A

judicial officer in the performance of his duties has absolute immunity from suit and will

not be liable for his judicial acts.” Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006).

Here, all of Malcomb’s allegations against the judicial defendants involved actions that

were taken within their judicial authority. In particular, Malcomb’s complaint alleged

that Magisterial District Judge Schulte notified him that his driving privileges would be

suspended and requested evidence indicating that he was incarcerated at the time of the

charged offense. Malcomb further asserted that Common Pleas Judge Dohanich denied

his motion for appointment of counsel and request for a “transport order.” 2 Because the


2
  According to docket reports submitted in the District Court, see S. Cross Overseas
Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999)
(stating that “[t]o resolve a 12(b)(6) motion, a court may properly look at public
records”), it appears that neither of the judicial defendants was responsible for the
                                               4
judicial defendants were acting within their jurisdiction in taking these actions, they are

entitled to absolute judicial immunity. Gallas v. Supreme Court of Pa., 211 F.3d 760,

768-69 (3d Cir. 2000). In addition, Malcomb’s vague allegation of a conspiracy does not

affect the immunity determination. See, e.g. Dorman v. Higgins, 821 F.2d 133, 139 (2d

Cir. 1987) (holding that “since absolute immunity spares the official any scrutiny of his

motives, an allegation that an act was done pursuant to a conspiracy has no greater effect

than an allegation that it was done in bad faith or with malice, neither of which defeats a

claim of absolute immunity.”).

       The District Court also properly dismissed the claims against the remaining

defendants. The majority of the events giving rise to Malcomb’s claims occurred more

than two years before he filed his complaint. Those claims, therefore, are time-barred by

the applicable statute of limitations. Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000)

(holding that federal courts considering a civil rights claim apply the relevant state’s

statute of limitations for personal injury actions, which in Pennsylvania is two-years).

We further agree that only the malicious prosecution claim − which accrued on March

31, 2009, when the traffic citation was withdrawn, see Rose v. Bartle, 871 F.2d 331, 348-

49 (3d Cir. 1989) − is timely. With respect to that claim, we conclude that Malcomb did

not suffer a deprivation of liberty consistent with the concept of seizure as a consequence


decisions finding Malcomb guilty and later overturning that conviction. We note that
judicial immunity would still apply if Malcomb had challenged rulings made by the other
judges involved in the underlying traffic citation proceedings.

                                              5
of a legal proceeding. See Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)

(describing elements of malicious prosecution claim). Here, Malcomb was issued a

traffic citation, ordered to appear in Magisterial District Court, and temporarily deprived

of his driving privileges while incarcerated on other charges. He was not arrested,

detained, or restricted in his travel. DiBella v. Borough of Beachwood, 407 F.3d 599,

603 (3d Cir. 2005) (holding that plaintiffs failed to establish a malicious prosecution clam

where they “were only issued a summons; they were never arrested; they never posted

bail; they were free to travel; and they did not have to report to Pretrial Services.”). Thus,

we conclude that the claims against the remaining defendants were properly dismissed.

       For the foregoing reasons, we conclude that no substantial question is presented by

this appeal. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s

judgment. Malcomb’s motion for appointment of counsel is denied. Tabron v. Grace, 6

F.3d 147, 155 (3d Cir. 1993)




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