                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2008

Wallace v. Fed Judges US Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1316




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-1316


                                    JOHN WALLACE
                                                          Appellant

                                             v.

  FEDERAL JUDGES OF UNITED STATES DISTRICT COURT, PHILADELPHIA;
      STATE JUDGES OF COMMONWEALTH COURT OF PA; GRAPHIC
              MANAGEMENT ASSOC.; and STEVENS & LEE


                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. Civil No. 06-1649)
                        District Judge: Honorable James T. Giles


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 10, 2008

                Before: AMBRO, FUENTES and FISHER, Circuit Judges

                             (Opinion filed: March 26, 2008)


                                         OPINION


PER CURIAM

       John Wallace filed a civil rights action against the Judges of the United States

District Court for the Eastern District of Pennsylvania (“federal judges”), the Judges of

the Commonwealth Court of Pennsylvania (“state judges”), Graphic Management Assoc.
(“GMA”), and the law firm of Stevens & Lee, for alleged fraud on the state and federal

courts.1 Wallace brought this action pursuant to 42 U.S.C. § 1983 and the rule of Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

       Appellant’s complaint arises out of unsuccessful state and federal lawsuits that his

wife Margaret brought in response to GMA’s termination of her employment in 2004.2

The federal suit initially was assigned to the Honorable Charles Weiner, and then re-

assigned to the Honorable R. Barclay Surrick after Judge Weiner recused himself at

Margaret’s request. The complaint specifies six alleged instances of fraud on the state

and/or federal courts: (1) Counsel for GMA, Attorney R. Michael Carr, not a defendant in

this action, allegedly substituted excerpts from the GMA Employee Handbook, which

falsely indicated to the Court that Margaret was aware of certain Handbook provisions

used to justify her termination; (2) Carr allegedly submitted a prior deposition transcript

in place of a subsequent deposition transcript without the Court’s knowledge or approval,

simply because the latter deposition contained testimony favorable to Margaret; (3) Carr

filed a motion to dismiss in which he allegedly claimed falsely that Margaret had not



       1
        The complaint is only nominally against all of the judges in the Eastern District of
Pennsylvania; it specifically names only Judges Weiner and Surrick. The complaint also
recites grievances against several other entities and individuals, such as the
Unemployment Compensation Board of Review, but these entities and individuals were
never served and never entered an appearance in the District Court. Accordingly, they are
not parties in this matter.
       2
        As Wallace proceeds pro se, he may not represent Margaret and may only assert
claims brought in his own right. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876 (3d
Cir. 1991).

                                              2
made out a prima facie case of employment discrimination or retaliation; (4) Carr filed a

summary judgment motion in which he allegedly claimed falsely that Margaret had no

cause of action, and that he quoted testimony from a deposition that the Court had ruled

should not be relied upon and omitted testimony favorable to Margaret; (5) Carr filed a

motion in limine to exclude evidence relating to Margaret’s termination, which “caused”

an adverse ruling by Judge Surrick; and (6) an unidentified male cashed Margaret’s

401(k) check. See Compl., pp. 48-51. Appellant asserts that Judge Weiner, who is now

deceased, and Judge Surrick both ignored and thereby acquiesced to frauds allegedly

perpetrated by Carr. The District Court dismissed Wallace’s suit against the state and

federal judges under Fed. R. Civ. P. 12(b)(6). Wallace appealed and sought entry of

judgment under Fed. R. Civ. P. 54(b), which the District Court denied. We dismissed the

appeal from that order for lack of jurisdiction. GMA and the individual defendants then

moved to dismiss the complaint, and the District Court granted the motion. Wallace

again appealed.

       We now have jurisdiction under 28 U.S.C. § 1291. We review a District Court’s

dismissal under Fed. R. Civ. P. 12(b)(6) de novo. Merle v. U.S., 351 F.3d 92, 94 (3d Cir.

2003). The District Court correctly determined that judges enjoy absolute judicial

immunity for conduct pursuant to their role as judicial officers. “A judge is absolutely

immune from liability for his judicial acts even if his exercise of authority is flawed by

the commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359

(1978). Accordingly, the claims against Judges Weiner and Surrick, as well as the claims

                                              3
against the state court judges, were properly dismissed.

       The District Court also correctly dismissed the complaint as to GMA and Stevens

& Lee. Neither GMA nor Stevens & Lee are state or federal actors, nor does the act of

filing a pleading with a court transform a private actor into an entity acting under color of

state or federal law. The complaint offers only conclusory allegations that GMA and

Stevens & Lee conspired with state and federal actors. Accordingly, Wallace’s claims

against GMA and Stevens & Lee were properly dismissed. Fries v. Helsper, 146 F.3d

452, 458 (7th Cir. 1998), cert. denied, 525 U.S. 930 (1998) (“[M]ere allegations of joint

action or a conspiracy do not demonstrate that the defendants acted under color of state

law and are not sufficient to survive a motion to dismiss.”).3

       Accordingly, we will affirm the judgment of the District Court.4




       3
       Should Wallace continue to file lawsuits against immune or otherwise improper
defendants, the District Court or we could enter an order restricting his filing of such
cases. See Chipps v. U.S. Dist. Ct. M.D. Pa., 882 F.2d 72, 73 (3d Cir. 1989).
       4
        In reaching this determination, we considered the motion for summary action filed
by appellees Federal Judges as well as appellant’s brief. We decline to take summary
action, proceeding instead under 3d Cir. LAR 34.1(a) (1997).
                                          4
