                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2005

Foster v. PA Human Relations
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1102




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                                             NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                     NO. 05-1102
                  ________________

                  JAMES E. FOSTER,

                           Appellant

                            v.


PENNSYLVANIA HUMAN RELATIONS COMMISSION;
            ATTORNEY GENERAL;
DEPUTY ATTORNEY GENERAL OF PENNSYLVANIA;
   LABOR AND INDUSTRY OF PENNSYLVANIA;
      CAREER LINKS OF PENNSYLVANIA;
       PENNSYLVANIA LEGAL SERVICE;
     LAW FIRM OF KORSAK & D EARMENT;
          MS. WENDY M CCROY ROTZ;
            MR. BILLY G. LANHAM;
             MR. JOSEPH KORSAK
     ____________________________________

    On Appeal From the United States District Court
         For the Middle District of Pennsylvania
               (D.C. Civ. No. 03-cv-01890)
    District Judge: Honorable Christopher C. Conner
    _______________________________________


      Submitted Under Third Circuit LAR 34.1(a)
                   July 19, 2005

Before:    ROTH, McKEE and ALDISERT, Circuit Judges

                (Filed November 3, 2005)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       James E. Foster, pro se, appeals several orders of the United States District Court

for the Middle District of Pennsylvania dismissing his civil rights action as to some

defendants and granting summary judgment in favor of others. Foster alleged various

civil rights violations under 42 U.S.C. §§ 1981, 1983, 1985 and 1986 in connection with

his search for employment. We will affirm the District Court’s orders.

       The procedural history of this case and the details of Foster’s claims are well-

known to the parties, set forth in the District Court’s thorough memoranda and orders,

and need not be discussed at length. Briefly, however, it appears that Foster attempted to

assert a claim of conspiracy to deny his right of access to the courts regarding an

underlying alleged claim of defamation. Commonwealth Appellees, the Pennsylvania

Human Relations Commission (“PHRC”), the Pennsylvania Department of Labor and

Industry (“PDLI”), the Attorney General and a Deputy Attorney General moved for

dismissal on the basis of Eleventh Amendment immunity as well as prosecutorial

immunity for the attorneys general.1 The remaining defendants from the original




   1
     Although Foster’s claims are vague and unclear, it appears that he seeks to hold the
attorneys general liable for their exercise of prosecutorial discretion in declining to
prosecute Foster’s former employer for alleged civil rights violations.

                                             2
complaint, Career Links of Pennsylvania, MidPenn Legal Services (“MidPenn”)2 and the

law firm of Korsak and DeArment moved to dismiss for failure to state a claim. The

District Court granted the motion with leave to amend because it concluded that Foster’s

complaint was not sufficient to put these defendants on notice of Foster’s alleged claims

as required under Federal Rule of Civil Procedure 8(a)(2).

         Foster filed an amended complaint in which he alleged violations of §§ 1981, 1983

and 1985, but failed to name Career Links, MidPenn and Korsak and DeArment as

defendants. Instead he named Korsak individually; Lanham, a section chief at Career

Links; and Rotz,3 an employee of MidPenn. Rotz sought dismissal on the bases of

improper service and failure to state a claim, which the District Court granted without

prejudice because Foster failed to effect proper service even after several requests and

warnings.4 Foster did not ever rectify the defective service. Defendants Korsak and

Lanham moved for dismissal, which was granted as to Foster’s allegations of violation of

§§ 1981 and 1985 because the District Court concluded that Lanham was entitled to

Eleventh Amendment immunity in his official capacity and that the amended complaint

was facially deficient as to Korsak and Lanham, in his individual capacity. Korsak and


   2
    This defendant was improperly named as Pennsylvania Legal Service in the caption.
The proper name of this defendant is MidPenn Legal Services.
   3
       In the caption, Rotz’s name is misspelled. It should be Wendy McCrory Rotz.
   4
     Although MidPenn had been dismissed as a defendant earlier and was not named in
the amended complaint, Rotz and MidPenn moved for dismissal jointly, and the District
Court granted it as to both.

                                             3
Lanham then moved for summary judgment, which the District Court granted on the basis

that Foster’s access to courts claim would necessarily fail because his underlying

purported claim of defamation was based purely on speculation. Foster timely appealed.

       Although he listed only the District Court’s January 4, 2005 summary judgment,

Foster mentioned other orders in his informal appellate brief. We may review those

orders as well. See MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086

(3d Cir. 1995). In his brief, Foster presents no meaningful argument. He does, however,

attempt to raise new issues such as an alleged Title VII violation and bias on the part of

the District judge, which he may not do. See Ross v. Hotel Employees & Rest.

Employees Int’l Union, 266 F.3d 236, 242 (3d Cir. 2001).

       We have jurisdiction pursuant to 28 U.S.C. §1291. Our review of the District

Court’s dismissals for failure to effectuate proper service and for failure to state a claim is

plenary. See McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 194 (3d Cir. 1998);

Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183 (3d Cir. 2000). Our

review of the grant of summary judgment is also plenary. See Guardian Life Ins. Co. of

Am. v. Goduti-Moore, 229 F.3d 212, 213 (3d Cir. 2000).

       After a thorough review of the record and the appellate briefs, we agree with the

District Court’s dismissal of Foster’s claims as to some defendants and claims and its

grant of summary judgment as to the § 1983 claim against Korsak and Lanham. As to

defendant Rotz, Rule 12(b)(5) dismissal was appropriate because Foster failed to serve



                                               4
Rotz properly despite repeated requests and warnings from the District Court to do so.

The District Court’s finding of immunity for the PHRC and the PDLI was proper, as they

were all clearly state agencies. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 131 F.3d 353, 356 (3d Cir. 1997). The finding of prosecutorial immunity

for the attorneys general was also proper because the basis of Foster’s allegations against

them was squarely within the realm of prosecutorial discretion and, therefore, entitled

them to be shielded from liability. See Imbler v. Patchman, 424 U.S. 409, 430-31 (1976).

Moreover, although the standard of review for Rule 12(b)(6) dismissal requires us to

accept as true all factual allegations, we need not accept “unsupported conclusions and

unwarranted inferences.” See Maio v. Aetna, Inc., 221 F.3d 472, 485 n.12 (3d Cir. 2000).

Foster’s complaints consist entirely of these. In light of Foster’s repeated failure to give

notice of a viable claim, Rule 12(b)(6) dismissal was appropriate as to the remaining

defendants and claims, with the exception of the § 1983 claim against Korsak and

Lanham. See Conley v. Gibson, 355 U.S. 41, 47 (1957).

       As to the § 1983 claim against Korsak and Lanham, the District Court’s grant of

summary judgment was appropriate. A grant of summary judgment will be affirmed if

our review reveals that “there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

Because Foster’s underlying claim of defamation was based purely on speculation arising

from a baseless conspiracy theory, Foster cannot suffer an injury by being shut out of



                                              5
court on this claim. His present civil rights claim for denial of access to the courts would,

therefore, necessarily fail. See Christopher v. Harbury, 536 U.S. 403, 414-15 (2002).

       For the reasons thoroughly discussed in the various orders of the District Court and

summarized above, we will affirm.




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