                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-5-2007

Thorpe v. New Jersey
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2636




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Recommended Citation
"Thorpe v. New Jersey" (2007). 2007 Decisions. Paper 477.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/477


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CLD-340                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 07-2636
                                  ________________

                                   TONY THORPE,

                                       Appellant

                                             v.

                    STATE OF NEW JERSEY, Federal Government

                             _________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                              (D.C. Civ. No. 06-cv-03259)
                    District Judge: Honorable Garrett E. Brown, Jr.
                    _______________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Possible Summary
                Action under Third Circuit L.A.R. 27.4 and I.O.P. 10.6

                                    August 16, 2007

           BEFORE: RENDELL, SMITH and JORDAN, CIRCUIT JUDGES

                               (Filed: September 5, 2007)

                              _______________________

                                     OPINION
                              _______________________
PER CURIAM

      Tony Thorpe appeals from the dismissal of his complaint by the United States

District Court for the District of New Jersey. Because Thorpe’s appeal presents no
substantial question, we will summarily affirm the judgment of the District Court.

       Thorpe filed a complaint accusing the State of New Jersey of “wrongfully

depriving him of his children for almost a year,” after the New Jersey Division of Youth

and Family Services (“DYFS”) allegedly removed the children from the care of their

mother (from whom he was separated) and placed them in foster homes. Thorpe claims

that he was trying to obtain custody of the children at the time the DYFS removed them

from their mother, but that he was denied custody even though he was not involved in the

incident which led to DYFS’s actions. He also claims that DYFS negligently denied the

children medical care for “over one week.” He seeks $830,000.00 in damages.

       Although Thorpe stated that the State of New Jersey violated his rights under 42

U.S.C. § 1981 and the Fifth Amendment, the District Court correctly construed Thorpe’s

complaint as asserting civil rights violations under 42 U.S.C. § 1983. The District Court

dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) due to the

State of New Jersey’s Eleventh Amendment immunity against suit, and declined to

exercise supplemental jurisdiction over the state law negligence claim. Thorpe timely

appealed and proceeds in forma pauperis.

       We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of a dismissal

for failure to state a claim is plenary. Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir.

1993). We are in complete agreement with the District Court’s analysis and decision that

the State of New Jersey is immune and that the complaint thus fails to state a claim. The

Eleventh Amendment of the U.S. Constitution protects a state or state agency from a suit

                                            2
brought in federal court by one of its own citizens regardless of the relief sought, unless

Congress specifically abrogates the state’s immunity or the state waives its own

immunity. MCI Telecom. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503-04 (3d Cir. 2001);

Edelman v. Jordan, 415 U.S. 651, 663 (1974). Section 1983 does not abrogate states’

immunity. Quern v. Jordan, 440 U.S. 332, 340-41 (1979). And New Jersey has neither

consented to suit nor has it waived its Eleventh Amendment immunity. The District

Court, therefore, properly concluded that the State of New Jersey is immune from suit in

this matter.

       Additionally, the District Court appropriately declined to exercise supplemental

jurisdiction over Thorpe’s state law negligence claim. See 28 U.S.C. § 1367(c)(3);

Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000).

       For these reasons, we will summarily affirm the District Court’s May 9, 2007

Order. See L.A.R. 27.4; I.O.P. 10.6.




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