                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-3230
                                     ____________

                                   WALTER NAILS,
                                                       Appellant

                                            v.

             PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
                    __________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civ. No. 09-cv-02105)
                    District Judge: Honorable Christopher C. Conner
                       __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 14, 2011

          Before: FUENTES, GREENAWAY, JR. and ROTH, Circuit Judges

                               (Filed: February 22, 2011 )
                                     ____________

                                       OPINION
                                     ____________


PER CURIAM

       Appellant Walter Nails appeals an order of the District Court dismissing his

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following

reasons, we will affirm.

       Nails was employed by the Pennsylvania Department of Transportation

(“PennDOT”) as an Equal Opportunity Specialist, when, on September 18, 2007, he was
arrested at work by an officer of the Pennsylvania State Police. According to Nails, the

arrest was pursuant to an invalid 1987 warrant from the State of New Mexico. On

September 28, 2007, PennDOT conducted a Pre-Disciplinary Conference at the Dauphin

County Prison where Nails was detained. Nails was present at this hearing. Following

the Pre-Disciplinary Conference, Nails received a letter from PennDOT, informing him

that he had been terminated from his civil service position effective October 5, 2007.

The letter gave Nails 20 days to appeal the decision to the State Civil Service

Commission.

       Nails was extradited to New Mexico on October 10, 2007. On October 26, 2007,

he was released and he returned to Dauphin County.1 On October 29, 2007, Nails filed

his appeal with the Civil Service Commission. PennDOT moved to dismiss the appeal as

untimely filed. On August 11, 2008, the State Civil Service Commission dismissed

Nails’ appeal as untimely filed, evidently concluding that incarceration is not an

unavoidable circumstance establishing a non-negligent failure to timely appeal. Nails

appealed to the Commonwealth Court, which affirmed. The state supreme court denied

discretionary review. See Nails v. State Civil Service Comm’n, 902 A.2d 610 (Pa. 2009)

(table).2

       Nails then filed a civil rights action in the United States District Court for the

Middle District of Pennsylvania, claiming a violation of his constitutional right to

procedural due process in connection with his termination. Nails contended that he


1
  Nails stated that the 1987 arrest warrant was issued pursuant to an indictment that was
invalidated by the New Mexico Supreme Court in 2000. The criminal case was
dismissed against him with prejudice. Complaint, at 11.
2
  The Civil Service Commission and the courts evidently all went on to state in the
alternative that the termination was justified. Complaint, at 15.
                                               2
received no advance notice of the Pre-Disciplinary Conference or notice of the three

charges against him. Because he had no advance notice, he was deprived of the

opportunity to present witnesses or otherwise rebut PennDOT’s evidence at the

September 28, 2007 conference. PennDOT’s excuse for not giving him advance notice

of this critical proceeding was that he was incarcerated. Nails contended that PennDOT

could have mailed the notice to him at the county jail, just as they mailed the subsequent

letter of termination. Nails sought back pay, benefits, promotions and seniority.

       Although Nails named only PennDOT as a defendant, in Counts II and III of his

complaint, he claimed that the State Civil Service Commission and the state courts denied

him due process in not excusing the lateness of his appeal. He asserted that there was no

just cause for his termination because his work performance was satisfactory, and he

argued that the Civil Service Commission and the courts were motivated by a desire to

retaliate against him for his complaints about race and gender discrimination and sexual

harassment at PennDOT. Those complaints had previously been expressed in writing to

his supervisor, the Human Resources Director, the Deputy Secretary for Administration,

the Secretary of Transportation, and even the Governor of the Commonwealth of

Pennsylvania.

       PennDOT moved to dismiss the complaint, Fed. R. Civ. Pro. 12(b)(6), contending

that Nails’ civil action was barred by the Eleventh Amendment to the United States

Constitution. The Magistrate Judge ordered Nails to file a response in opposition to the

motion to dismiss by a certain date, and when Nails failed to file any response, the

Magistrate Judge filed a Report and Recommendation, recommending that the motion be

granted as unopposed. Reasoning that the action was brought under 42 U.S.C. § 1983

                                             3
and not Title VII, the Magistrate Judge further noted that the complaint was barred by the

Eleventh Amendment in any event. Nails did not file Objections. In an Order entered on

April 8, 2010, the District Court adopted the Report and Recommendation, granted the

motion to dismiss the complaint, and concluded that any amendment would be futile.

The court reasoned in pertinent part that sovereign immunity bars an action under section

1983 against the state Department of Transportation, see Lombardo v. Pennsylvania, 540

F.3d 190, 194 (3d Cir. 2008) (immunity of States from suits in federal courts is

fundamental aspect of state sovereignty). See also Kimel v. Florida Bd. of Regents, 528

U.S. 62, 73 (2000) (Constitution does not provide for federal jurisdiction over suits

against non-consenting States).

       On April 27, 2010, Nails filed a motion for “clarification,” in which he claimed

that he did not receive the Report and Recommendation. He asked to be allowed to file

Objections out-of-time. In an order entered on May 21, 2010, the District Court treated

the motion as one to reopen the case, but denied it. Nails appeals.

       We will affirm. We have jurisdiction under 28 U.S.C. § 1291.3 We exercise

plenary review over a Rule 12(b)(6) dismissal. See Weston v. Pennsylvania, 251 F.3d

420, 425 (3d Cir. 2001). “[W]hen ruling on a defendant’s motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), a judge must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The District

Court properly dismissed the complaint. Nails’ civil rights action against the state


3
 The District Court granted Nails’ timely motion to extend the time for appealing, Fed,
R. App. Pro. 4(a)(5), and Nails then filed his notice of appeal within the time required by
the rule.
                                              4
Department of Transportation is barred by the Eleventh Amendment because

Pennsylvania has not consented to suit in federal court.

       The Eleventh Amendment provides that states are immune from suit in federal

court, see Lombardo, 540 F.3d at 194; Kimel, 528 U.S. at 73. The Pennsylvania

Department of Transportation is a state agency, as is the State Civil Service Commission.

See 71 Pa. Adm. Code § 61. “A State’s immunity from suit is not absolute. Congress

may abrogate a State’s sovereign immunity in the exercise of its power to enforce the

Fourteenth Amendment, and a State may consent to suit by making a clear declaration

that it intends to submit itself to federal court jurisdiction.” Lombardo, 540 F.3d at 195-

96 (internal quotation removed). But Congress has not abrogated the States’ immunity

from section 1983 actions, Quern v. Jordan, 440 U.S. 332, 345 (1979), and Pennsylvania

has withheld its consent to suit in federal court, 42 Pa. Cons. Stat. Ann. § 8521(b). See

Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).

       In his brief on appeal, Nails has argued the merits of his case before the State Civil

Service Commission, and complained that the District Court did not reach a decision on

the facts of his case. He contends that sovereign immunity as applied by the federal

courts violates his Fourteenth Amendment rights, and States should not be free to engage

in misconduct and then hide behind the shield of Eleventh Amendment immunity. It is,

however, well-established that the United States Constitution recognizes a system of dual

sovereignty between the States and the Federal Government; such sovereignty prohibits

the summoning of States to federal court to answer the complaints of private persons

unless they consent. See, e.g., Lombardo, 540 F.3d at 194. Moreover, Congress may, as

it did with Title VII, abrogate the States’ immunity, see Fitzpatrick v. Bitzer, 427 U.S.

                                             5
445 (1976), but it has not done so with respect to section 1983 actions, see Quern, 440

U.S. at 345. Accordingly, had Nails raised these arguments in Objections to the Report

and Recommendation, it would not have changed the result in his case. We also agree

with the District Court that any amendment to Nails’ complaint would have been futile,

see Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

      For the foregoing reasons, we will affirm the orders of the District Court

dismissing the complaint and denying the motion to reopen.




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