PS5-204                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 15-1684
                                       ___________

                                    OLAND BRISCO,
                                                        Appellant

                                             v.

     JOHN DOE, individual and official capacity, citizen of State of New Jersey driver;
       JOHN DOE PASSENGER, individual capacity, citizen of State of New Jersey;
         GEORGE MUSCHAL, individual capacity as former Mayor of Trenton;
                  JOHN DOE, individual capacity, Chief of Police;
    CHRISTOPHER CHRISTIE, individual and official capacity, Governor of New Jersey
                     ____________________________________

                      On Appeal from the United States District Court
                               for the District of New Jersey
                          (D.C. Civil Action No. 3:14-cv-05173)
                       District Judge: Honorable Freda L. Wolfson
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   September 2, 2015

             Before: CHAGARES, JORDAN and NYGAARD, Circuit Judges

                            (Opinion filed: September 14, 2015)

                                       ___________

                                        OPINION*
                                       ___________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Oland Brisco appeals pro se from the District Court’s order dismissing his

complaint for lack of jurisdiction. We will affirm that judgment.

                                              I.

       According to Brisco, in March 2014, he was riding his bicycle on a street in

Trenton, New Jersey, when he encountered “broken glass debris” in the road. At the

same time, a car carrying two unidentified individuals refused to slow down as it passed

Brisco, deliberately striking him (and almost knocking him off his bicycle) before

speeding away. Brisco suffered injuries from this incident and had to seek medical

treatment. He reported the incident to the police but claims that the ensuing investigation

was inadequate. In light of these alleged events, Brisco filed a pro se civil rights

complaint in the District Court against New Jersey Governor Christopher Christie, former

Trenton Mayor George Muschal, a “John Doe” chief of police, and the two John Does

who were in the car.1 The claims against Christie and Muschal appeared to stem from

their alleged failure to maintain the roads in Trenton, and Brisco claimed that their

conduct violated his rights under the First, Second, Eighth, and Fourteenth Amendments.

       After initiating this case, Brisco filed multiple motions in the District Court,

seeking various preliminary injunctive relief. Meanwhile, Christie and Muschal each

moved to dismiss the complaint. On March 3, 2015, the District Court granted the


1
 There is no indication that the three John Doe defendants in this case were ever served
with the complaint.
                                              2
motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), concluding that

it lacked subject matter jurisdiction over the case because the complaint failed to present

a federal question.2 The District Court did not rule on Brisco’s motions for preliminary

injunctive relief. This timely appeal followed.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.3 We review

de novo the District Court’s dismissal of Brisco’s complaint under Rule 12(b)(1). See

Free Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519, 530 (3d Cir. 2012). Dismissal under

Rule 12(b)(1) “is not appropriate merely because the legal theory alleged [in the

complaint] is probably false, but only because the right claimed is ‘so insubstantial,

implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise

completely devoid of merit as not to involve a federal controversy.’” Kulick v. Pocono

Downs Racing Ass’n, 816 F.2d 895, 899 (3d Cir. 1987) (quoting Oneida Indian Nation v.

Cnty. of Oneida, 414 U.S. 661, 666 (1974)). “The threshold to withstand a motion to




2
  The District Court noted that, even if it had jurisdiction over the complaint, dismissal
would still be warranted under Federal Rule of Civil Procedure 12(b)(6) because “neither
former Mayor Mushcal [sic] nor Governor Christie [is a] ‘person[]’ who may be sued
under [42 U.S.C.] § 1983 for actions taken in [his] official capacit[y].” (Dist. Ct. Order
entered Mar. 3, 2015, at 3 n.1.) Because we agree with the District Court that dismissal
was appropriate under Rule 12(b)(1), we need not consider its Rule 12(b)(6) analysis.
3
  Although the District Court did not dismiss Brisco’s claims against the three unserved
defendants, the District Court’s March 3, 2015 order is nevertheless final and appealable
because those three defendants are not considered parties to this lawsuit. See De Tore v.
Local #245 of the Jersey City Pub. Emps. Union, 615 F.2d 980, 982 n.2 (3d Cir. 1980).
                                             3
dismiss under [Rule] 12(b)(1) is thus lower than that required to withstand a Rule

12(b)(6) motion.” Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989).

       In this case, Brisco failed to meet the threshold to survive dismissal under Rule

12(b)(1). Because there is no diversity jurisdiction in this case, see 28 U.S.C. § 1332, the

District Court can exercise jurisdiction over Brisco’s complaint only if this civil action

“aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

Although Brisco’s complaint does cite several constitutional provisions in passing, “[w]e

are not bound by the label attached by a party to characterize a claim and will look

beyond the label to analyze the substance of a claim.” Jarbough v. Att’y Gen., 483 F.3d

184, 189 (3d Cir. 2007). As the District Court observed, Brisco’s allegations against

Governor Christie and former Mayor Muschal appear to contend that those defendants’

failure to maintain the roads in Trenton contributed to Brisco’s bicycle accident. We

agree with the District Court that these allegations appear to be an effort to raise a state

law tort claim for negligence, and that Brisco’s efforts to cloak that claim in

constitutional garb are insufficient to trigger federal question jurisdiction under § 1331.

       In light of the above, we will affirm the District Court’s dismissal of Brisco’s

complaint for lack of jurisdiction.4 To the extent that Brisco’s brief requests any

additional relief, that request is denied.


4
  As noted above, the District Court did not rule on Brisco’s motions for preliminary
injunctive relief. But we need not disturb the District Court’s judgment on that basis
because, again, the District Court lacked jurisdiction to consider the merits of his claims
(let alone award preliminary or permanent relief on those claims).
                                              4
