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


3-18-2008

Lattaker v. Rendell
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4694




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Recommended Citation
"Lattaker v. Rendell" (2008). 2008 Decisions. Paper 1424.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1424


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DLD-133                                           NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-4694
                                      ___________

                                JAMES K. LATTAKER,
                                                           Appellant

                                            v.

  GOVERNOR EDWARD G. RENDELL; REPRESENTATIVE JOSEPH PRESTON;
      STATE SENATOR JIM FERLO; JUDICIAL CONDUCT BOARD OF
      PENNSYLVANIA; THE COMMONWEALTH OF PENNSYLVANIA
               ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 07-cv-01630)
                    District Judge: Honorable Terrence F. McVerry
                     ____________________________________

         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
                                    March 3, 2008

       Before: BARRY, CHAGARES AND GREENBERG, CIRCUIT JUDGES.

                            (Opinion Filed: March 18, 2008)
                                      _________

                                        OPINION
                                       _________

PER CURIAM

      James K. Lattaker appeals, pro se, from the order of the United States District

Court for the Western District of Pennsylvania dismissing his action pursuant to 28
U.S.C. § 1915(e)(2)(B). Because the appeal fails to present a substantial question, we

will summarily affirm.

                                              I.

       The claims alleged in Lattaker’s complaint arose out of child support proceedings

before the Pennsylvania Court of Common Pleas for Allegheny County between July

1994 and July 2006. According to Lattaker, he was previously incarcerated for failure to

comply with support orders and unsuccessfully claimed judicial misconduct before

Defendant Judicial Conduct Board of Pennsylvania. In his current complaint, Lattaker

challenged Bill 1454, which was enacted in 1988 and provides that willful failure to

comply with a support order constitutes a summary offense. See 23 Pa. Cons. Stat. Ann.

§ 4354(a). The legislation apparently “led to the development of specific State Domestic

Relations statutes and specific sections of . . . Pennsylvania’s Rules of Civil Procedure”

that, in turn, allegedly violated various provisions of the United States Constitution.

(Compl. at 3.) Lattaker claimed that he notified Defendants Governor Edward G.

Rendell, Pennsylvania State Representative Joseph Preston, and Pennsylvania State

Senator Jim Ferlo of the statute’s unconstitutionality in July 2006. He alleged that the

above Defendants, together with Defendant Commonwealth of Pennsylvania, were liable

under 42 U.S.C. § 1983 and § 1985. He expressly requested compensatory and punitive

damages as well as declaratory relief.

       Lattaker moved for leave to proceed in forma pauperis. On December 4, 2007, the



                                              2
District Court granted his motion for the limited purpose of filing the underlying

complaint and dismissed the action on Eleventh Amendment grounds pursuant to

§ 1915(e)(2)(B)(ii). Lattaker filed a timely notice of appeal as well as motions for

summary action, for pro se mediation, and for appointment of counsel for mediation.

                                             II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and we exercise

plenary review over the District Court’s dismissal under § 1915(e)(2)(B). See, e.g., Allah

v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We conclude that the appeal fails to

present a substantial question and will summarily affirm the District Court’s dismissal.

See Third Circuit LAR 27.4; I.O.P. 10.6.

       Because Lattaker himself filed for leave to proceed in forma pauperis, the District

Court properly considered whether his complaint was frivolous, malicious, failed to state

a claim for which relief may be granted, or sought monetary relief against a party who

was immune from such relief. 28 U.S.C. § 1915(e)(2)(B). It then correctly determined

that the Eleventh Amendment bars all of his claims against the Commonwealth itself and

one of its agencies, the Judicial Conduct Board. See, e.g., MCI Telecomm. Corp. v. Bell-

Atl.-Pa., 271 F.3d 491, 503 (3d Cir. 2001). Furthermore, Eleventh Amendment immunity

bars claims for damages against Governor Rendell, Representative Preston, and Senator

Ferlo insofar as they were named in their official capacities. See, e.g., Melo v. Hafer, 912

F.2d 628, 635 (3d Cir. 1990). On the other hand, the Eleventh Amendment does not



                                             3
preclude either personal-capacity damages claims against the three individual officials or

claims against them for prospective relief to stop continuing violations of federal law.

See, e.g., MCI, 271 F.3d at 506; Melo, 912 F.2d at 635 Nevertheless, we find that

Lattaker’s damages claims against the individual Defendants are barred by the legislative

immunity doctrine and that his claim for declaratory relief fails to satisfy the “case or

controversy” requirement of the federal Constitution. See, e.g., Tourscher v.

McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (“We may affirm the district court on any

ground supported by the record.” (citation omitted)).

       “Absolute legislative immunity attaches to all actions taken ‘in the sphere of

legitimate legislative activity,’” and the doctrine “shields from suit not only legislators,

but also public officials outside of the legislative branch when they perform legislative

functions.” Baraka v. McGreevey, 481 F.3d 187, 195-96 (3d Cir.) (quotation omitted),

cert. denied, 128 S. Ct. 612 (2007). Lattaker alleged that his constitutional rights were

violated as a result of Bill 1454's enactment and the subsequent refusal to repeal or amend

the legislation. However, a legislator’s acts of drafting, debating, and then voting on a

bill constitute legitimate legislative activities. See, e.g., id. at 197. Governor Rendell was

also entitled to immunity for such constitutionally authorized activities as whether to sign

or veto a particular bill and whether to recommend proposed legislation to the General

Assembly. Pa. Const. art. IV, §§ 11, 15; see also, e.g., Baraka, 481 F.3d at 195-202.

       Lattaker further sought a judgment declaring, among other things, that the



                                               4
Pennsylvania Legislature violated the Privileges and Immunities Clause of the Fourteenth

Amendment and that it must amend the statutes governing child support proceedings

within a designated time frame. In order to establish standing and thereby satisfy the

“case or controversy” requirement of Article III, a party requesting a declaratory

judgment “must allege facts from which it appears there is a substantial likelihood that he

will suffer injury in the future.” Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003)

(citation omitted). Lattaker’s complaint acknowledged that his child support proceedings

were terminated by July 2006, and he did not allege any continuing child support

obligations on his part. Accordingly, there is no “substantial likelihood” that Lattaker

will be injured as a result of Bill 1454 in the future, and we must reject his declaratory

judgment claim against Governor Rendell, Representative Preston, and Senator Ferlo.

       In the end, we conclude that the action filed by Lattaker was properly dismissed

pursuant to § 1915(e)(2)(B).1 In his motion for summary action, Lattaker argues, for the

first time, that the District Judge should have recused because he “used to work for the

Commonwealth of Pennsylvania as an elected state representative for (12) twelve years

and used to be a Family Court Judge for (3) three years.” (Mot. for Summ. Action at 2.)

However, Lattaker fails to show that the failure to recuse constituted plain error. See,




   1
      Given our conclusion that his claims must be rejected on Eleventh Amendment,
legislative immunity, and “case or controversy” grounds, we agree with the District Court
that providing Lattaker with an opportunity to amend his complaint would have been
futile. See, e.g., Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

                                              5
e.g., Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 165 (3d Cir. 2004)

(applying plain error standard when party did not request recusal in district court). On the

contrary, his complaint lacked any reference to the District Judge, and it never named him

(or any other former or current state court judge) as a defendant. Lattaker has never

claimed that the District Judge, while serving as an Allegheny County Family Court

judge, presided over or had any role to play in his child support proceedings. Likewise,

he has not asserted that the District Judge, who left the Pennsylvania General Assembly

more than fifteen years ago, played a specific role in the adoption of Bill 1454. Even

assuming arguendo that the District Judge should have recused, we find that any error on

his part would have been merely harmless given our conclusion, after conducting a

plenary review, that Lattaker’s claims must be dismissed. See, e.g., id. at 170-72.

                                            III.

       For the foregoing reasons, we will summarily affirm the District Court’s dismissal

pursuant to 28 U.S.C. § 1915(e)(2)(B). In light of our disposition, we deny Lattaker’s

motions for summary action, for pro se mediation, and for appointment of counsel for

mediation.




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