GLD-012                                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 12-3300
                                 ___________

                           ELIZABETH HARVEY,
                                       Appellant

                                       v.

               PETER G. LOFTUS; C. KENT PRICE, Esquire;
          JUDGE M. MUNLEY, in his official and individual capacities;
            RAMANI AYER, Chairman and Chief Executive Officer;
                     HARFORD INSURANCE CO.
                ____________________________________

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                         (D.C. Civil No. 3-10-cv-02505)
                 District Judge: Honorable C. Darnell Jones, II
                 ____________________________________

                    Submitted for Possible Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                October 12, 2012

             Before: FUENTES, FISHER and ROTH, Circuit Judges

                      (Opinion filed: November 27, 2012)

                                  _________

                                  OPINION
                                  _________
PER CURIAM

       Elizabeth Harvey, proceeding pro se, appeals an order from the United States

District Court for the Middle District of Pennsylvania dismissing her complaint and an

order denying her motion to reconsider that dismissal. Because this appeal presents no

substantial question, we will summarily affirm the judgment of the District Court.

                                             I.

       In December 2010, Harvey filed a complaint in the District Court that she

amended in March 2011, broadly asserting three claims against Ramani Ayer, Peter

Loftus, Judge James M. Munley, Kent Price, and Does 1-5. The claims and defendants

were related to a separate civil case Harvey was pursuing. The first claim was a

malpractice claim against Loftus, Harvey’s attorney in the civil case, alleging that he

failed in his professional obligations to Harvey and thereby violated her constitutional

rights to due process and equal protection. Harvey next claimed that Ayer, Loftus, Judge

Munley, and Price conspired to have Harvey accept a settlement offer so that Judge

Munley could take a vacation rather than preside over her trial, and when she refused to

settle the trial was sabotaged. Harvey finally claimed that the defendants deprived her of

her constitutional rights and caused her severe emotional distress for which she sought

relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1977).

       All named defendants filed motions to dismiss, and, on May 23, 2012, Harvey

responded and waived objection to dismissal of the claims against Ayer and Price.
                                             2
Harvey’s response to the motions to dismiss did not provide additional factual

allegations.

       On June 8, 2012, the District Court, pursuant to Federal Rule of Civil Procedure

12(b)(6), dismissed the complaint with prejudice as to the second and third claims; it

dismissed the first claim as a pendent state law claim over which it did not have

supplemental jurisdiction. Harvey filed a “Motion for Extension of Time To For a 30

Days Extension of Time to Respond to and/or Seek Further Consideration of Court’s

6/7/2012 Order Dismissing This Action” on June 18, 2012. Harvey’s motion generally

requested (1) a thirty day extension “to seek further consideration of the Court’s action”

and potentially “file a Second Amended Complaint” and (2), in the alternative, relief

from the order pursuant to Federal Rule of Civil Procedure 60(b)(3) “[o]r any other

applicable rule under F.R.C.P.” The motion’s basis for an extension of time was a flu-

like illness that Harvey suffered. In regard to the request for relief under Rule 60(b)(3),

the motion broadly accused the District Court of favoring the defendants, prejudicing

Harvey, and potentially acting with “impermissable [sic] motive.”

       On June 19, 2012, the District Court denied Harvey’s motion, without

characterizing it, but the District Court did note its unpersuasiveness. Harvey filed a

notice of appeal on August 14, 2012, specifically challenging the District Court’s order

denying the motion. On appeal, Harvey generally alleges that fraud tainted the




                                              3
proceedings in the District Court and that the District Court “completely ignored” facts

for the purpose of “concealment or non-disclosure of a material fact.”1

                                            II.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291, and we may affirm

on any grounds supported by the record. See Hughes v. Long, 242 F.3d 121, 121 n.1 (3d

Cir. 2001). Although the notice of appeal only referenced the denial of Harvey’s Rule

60(b) motion, we construe it liberally to encompass both orders.2 See Ghana v. Holland,

226 F.3d 175, 180 (3d Cir. 2000).

       Our review of the District Court’s grant of Loftus and Judge Munley’s motions to

dismiss is de novo. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). In

order to survive dismissal a complaint must contain sufficient factual matter, accepted as


1
   Harvey’s response to the Clerk’s notice of possible summary affirmance raised
concerns regarding whether this Court received the record from the District Court. The
District Court record was made available electronically to this Court on August 17, 2012.
Notice was electronically mailed to all defendants, but notice was not sent to Harvey. In
deciding this matter we reviewed the District Court’s record and Harvey’s response to the
notice of potential summary affirmance.
2
  Ordinarily, when a United States officer, such as Judge Munley, is sued in an official
capacity, an appeal must be filed within sixty days of the appealed order or judgment.
Fed. R. App. P. 4(a)(1)(B). However, when a party files a timely motion under Federal
Rule of Civil Procedure 60 within twenty-eight days after judgment is entered, the time to
file an appeal is tolled until the date of the District Court’s disposition of the post-
judgment motion. Fed. R. App. P. 4(a)(4)(A); see also Long v. Atlantic City Police
Dep’t, 670 F.3d 436, 440 (3d Cir. 2012). In this case, Harvey filed her Rule 60 motion
on June 18, 2012, ten days after the June 8th order dismissing the case, thereby tolling the
appeal period until “the entry of the order disposing of” the motion. Fed. R. App. P.
4(a)(4)(A). The district court denied Harvey’s motion on June 19, 2012, at which time
the sixty-day appeal period began running. Harvey’s notice of appeal was therefore
timely filed on August 14, 2012, within sixty days of the District Court’s June 19th order.
                                             4
true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). The plausibility standard “asks for more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A claim is plausible on its face “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. We review the denial of a Rule 60(b)(3) motion for abuse of

discretion. Budget Blinds of NJ, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008);

Lorenzo v. Griffith, 12 F.3d 23, 26 (3d Cir. 1993). We may summarily affirm if the

appeal presents no substantial questions. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                             III.

       Harvey alleged that Judge Munley made critical comments during a settlement

conference and read jury instructions improperly in furtherance of a conspiracy to punish

Harvey for not accepting a settlement offer. All of the allegations against Judge Munley

concerned acts taken in his judicial capacity and in a matter over which he had

jurisdiction. Absolute judicial immunity shields judges from liability for such acts.

Cleavinger v. Saxner, 474 U.S 193, 199 (1985). Judicial immunity attaches even if the

act was done in furtherance of a conspiracy. Dennis v. Sparks, 449 U.S. 24, 26-27

(1980). Thus, Judge Munley is entitled to absolute judicial immunity for Harvey’s

conspiracy claim. Judge Munley is likewise entitled to absolute judicial immunity for

Harvey’s Bivens claim. See Gallas v. Sup. Ct. of Pa., 211 F.3d 760, 768 (3d Cir. 2000)

(“The Supreme Court long has recognized that judges are immune from suit under
                                              5
section 1983 for monetary damages arising from their judicial acts.”). Accordingly, the

District Court correctly dismissed all claims against him with prejudice.



                                                  IV.

       The District Court’s dismissal of the conspiracy claim against Loftus was

appropriate because Harvey’s allegations and the reasonable inferences they supported

failed to state a conspiracy claim. See Iqbal, 556 U.S. at 678; see also Young v. Kann,

926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (“[I]t is a longstanding rule in the Third Circuit

that a mere general allegation . . . of conspiracy or collusion without alleging the facts

which constituted such conspiracy or collusion is a conclusion of law and is insufficient

[to state a claim].” (alteration in original) (quoting Kalmanovitz v. G. Heileman Brewing

Co., Inc., 595 F.Supp. 1385, 1400 (D.Del. 1984), aff’d, 769 F.2d 152 (3d Cir. 1985)). As

the District Court correctly determined, Harvey’s complaint did not rise above general

allegations and conjecture. Because Harvey’s complaint failed to provide sufficient

factual allegations to support an inference of agreement between the defendants, we agree

with the District Court’s dismissal of Harvey’s conspiracy claim against Loftus with

prejudice. 3




3
  In her response to the motions to dismiss, Harvey argued that her complaint satisfied the
fair notice pleading standard of Conley v. Gibson, 355 U.S. 41 (1957). That standard was
abrogated by and replaced with the plausibility standard of pleading in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007).
                                              6
       Harvey sought damages under a Bivens action against Loftus for emotional

distress suffered as a result of the alleged conspiracy. The Bivens action relied on the

improperly pled conspiracy claim, thus it is also insufficient. We therefore affirm the

District Court’s dismissal of the Bivens action against Loftus with prejudice.4 See

Hughes, 242 F.3d at 121 n.1.

       Finally, we concur in the District Court’s decision to not exercise supplemental

jurisdiction over the state law malpractice claim against Loftus. 28 U.S.C. § 1367(c)(3);

see Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).

                                            V.

       Harvey requested relief under Rule 60(b)(3) from the dismissal of her complaint.

In order to prevail on a Rule 60(b)(3) motion, the moving party “must establish that the

adverse party engaged in fraud or other misconduct and that the misconduct prevented

the moving party from fully and fairly presenting his case.” Stridiron v. Stridiron, 698

F.2d 204, 206-07 (3d Cir. 1983). Harvey’s 60(b)(3) motion did not allege fraud or

misconduct against the defendants; rather, she alleged misconduct on the part of the

District Court.




4
  The District Court dismissed the Bivens action against Loftus as brought outside the
two-year statute of limitations. The duration of the alleged conspiracy is unclear and we
are not convinced that this claim should have been dismissed for violating a statute of
limitations. Regardless, any error was harmless because the complaint failed to state a
claim upon which relief can be granted. See McDonough Power Equip. v. Greenwood,
464 U.S. 548, 553-54 (1984); Rose v. Bartle, 871 F.2d 331, 342-43 (3d Cir. 1989).
                                             7
         Alleged misconduct of the District Court may be remedied by a motion pursuant

to Rule 60(b)(6) “in extraordinary circumstances where, without such relief, an extreme

and unexpected hardship would occur.” Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d

Cir. 1993); see also Morris v. Horn, 187 F.3d 333, 341 (3d Cir. 1999). Harvey’s motion

made no concrete allegations of misconduct, and primarily addressed the District Court’s

rulings that were adverse to her. Accordingly, because Harvey did not allege any fraud

perpetrated by an adverse party and did not demonstrate extraordinary circumstances or

extreme hardship caused by the District Court, there was no basis for relief under Rule

60(b).

                                             VI.

         For the foregoing reasons, this appeal presents no substantial question and we will

summarily affirm.




                                              8
