BLD-278

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2257
___________
ROBERT L. GARY,
Appellant
v.

PENNSYLVANIA HUMAN RELATIONS COMMISSION; YVONNE AGUAYO,

Human Relations Representative; KAABA BRUNSON, Human Relations
Representative; CHARLENE NATCHER, Human Relations Representative; U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; MARIE M. TOMASSO,
District Director
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5-10-cv-01844)
District Judge: Honorable Juan R. Sanchez
____________________________________
Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 7, 2012
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
(Opinion filed: September 20, 2012)
_________
OPINION
_________

PER CURIAM
Robert L. Gary, proceeding pro se and in forma pauperis, appeals from the District
Courts dismissal of his complaint with prejudice. For the reasons set forth below, we
will summarily affirm.
I.
In February 2008, Gary, an African-American male, worked for Holiday Inn as a
chamber maid and houseman. (Dkt. No. 6, 11-14.) After his discharge in March
2009, he applied for and was initially denied unemployment benefits because Holiday Inn
failed to report a portion of his earnings. (Id. 15-16.) Because he then experienced a
delay in receiving his benefits, Gary filed a charge of employment discrimination against
Holiday Inn with the Pennsylvania Human Relations Commission (PHRC). (Id. 17,
25-28.) Several PHRC employees were involved in investigating his claim. (Id. 3043.) According to Gary, the PHRC employees purposely conspired to delay its
resolution. (Id. 45, 49.) In August 2009, Gary received a notice that his charge of
employment discrimination was sent to the United States Equal Employment Opportunity
Commission (EEOC) for dual filing purposes. (Id. 50.) Gary believed that, at that
point, it was the EEOCs responsibility to take the lead in handling his claim. (Id.
51.)
Dissatisfied with both the PHRC and the EEOC, Gary instituted this action in June
2010. He sought injunctive and equitable relief under various civil rights statutes,
Pennsylvania law, and the Thirteenth and Fourteenth Amendments. (Id. p. 2 1.)
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The PHRC defendants 1 filed a motion to dismiss Garys complaint for lack of
subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), and for
failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No.
10.) The District Court granted it as unopposed and dismissed Garys complaint with
prejudice as to the PHRC defendants. (Dkt. No. 11.) Gary appealed, but we determined
that we lacked jurisdiction under Federal Rule of Civil Procedure 54(b) because the
claims against the EEOC defendants 2 remained in the case. (Dkt. No. 33.) The EEOC
defendants then filed a motion to dismiss for lack of subject matter jurisdiction, failure to
state a claim, and improper service of process. (Dkt. No. 38.) The District Court granted
it and dismissed Garys complaint with prejudice. (Dkt. Nos. 43 and 44.) Gary timely
filed a notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. 1291. We review a district
courts dismissal for failure to comply with a procedural rule for abuse of discretion. See
Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). The standard of review over
dismissal for lack of subject matter jurisdiction is plenary. Gould Elecs. Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000). We also exercise plenary review over a motion

The Pennsylvania Human Relations Commission, and Human Relations Representatives

Yvonne Aguayo, Kaaba Brunson, and Charlene Natcher.

The United States Equal Employment Opportunity Commission and its District
Director, Marie M. Tomasso.
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to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Taliaferro v. Darby

Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). We may summarily affirm the
decision of the District Court if no substantial question is presented on appeal. 3d Cir.
LAR 27.4 and I.O.P. 10.6.
A well-pleaded complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint
offering labels and conclusions or a formulaic recitation of the elements of a cause of
action does not suffice. Id. (citing Twombly, 550 U.S. at 555). The plausibility
standard requires more than a sheer possibility that a defendant is liable for the alleged
misconduct. Id. Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.
We first turn to the District Courts treatment of the PHRC defendants motion to
dismiss. 3 Gary did not respond to the motion within the time provided by the local rules.
Thus, the District Court deemed it unopposed and, without any analysis under Rule
12(b)(6), dismissed Garys complaint with prejudice as to the PHRC defendants. (Dkt.
No. 11.)

This case was initially assigned to Judge James Knoll Gardner and then transferred to
Judge Juan Sanchez.
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We generally disfavor dismissal that is a sanction for failure to comply with the
local court rule. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991). In
Stackhouse, we held that motions to dismiss should not be granted without an analysis of
the merits of the underlying complaint, notwithstanding local rules regarding the granting
of unopposed motions. Id. Additionally, a district court must analyze the relevant factors
set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), before
concluding that the sanction of dismissal is warranted. See Comdyne I, Inc. v. Corbin,
908 F.2d 1142, 1148 (3d Cir. 1990). While we have said that some cases could be
dismissed as unopposed, particularly if the party is represented by an attorney, or if the
party failed to comply with a courts orders, Stackhouse, 951 F.2d at 30, that is not the
situation here. The District Court did not give Gary any notice that it was considering the
sanction of dismissal for failure to comply with local procedure. It was apparent that
Gary intended to prosecute his case, given that he filed several motions for default
judgment against all of the defendants prior to their filing motions to dismiss. Further,
the District Court did not undertake any analysis of the Poulis factors to establish that
such a sanction was warranted. Accordingly, we find that the District Court abused its
discretion in dismissing Garys complaint for failing to oppose the motion to dismiss.
Nevertheless, we will summarily affirm on alternative grounds because Garys
claims lack merit. Stackhouse, 951 F.2d at 30; see also Johnson v. Orr, 776 F.2d 75, 83
n.7 (3d Cir. 1985) (An appellate court may affirm a result reached by the district court
on reasons that differ so long as the record supports the judgment.). As discussed
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below, the District Court lacked subject matter jurisdiction over Garys claims, and, in
any event, Gary did not assert any plausible claims against the PHRC or the EEOC
defendants.
A.

The PHRC Defendants

Gary alleged that the PHRC defendants violated his constitutional and civil rights.
However, the Eleventh Amendment enacts a sovereign immunity from suit, preventing
actions in federal court against states, their agencies, and their employees acting in their
official capacities. Idaho v. Coeur dAlene Tribe, 521 U.S. 261, 267-68 (1997).
Pennsylvania has not consented to be sued in federal court. 42 Pa. Cons. Stat. 8521(b).
As a state agency, the PHRC and its employees, acting in their official capacities, are
entitled to sovereign immunity as to Garys federal claims, and they were properly
dismissed for lack of subject matter jurisdiction. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 98 (1984).
Gary also alleged that the PHRC defendants violated state law by engaging in
willful misconduct, abuse of process, and failure to protect. Under Pennsylvania law, the
PHRC defendants are Commonwealth parties and therefore immune from suit, subject to
nine limited categories of negligence where sovereign immunity is waived. See 1 Pa.
Cons. Stat. 2310 (sovereign immunity exists in Pennsylvania unless specifically
waived); 42 Pa. Cons. Stat. 8501 and 8522(b) (defining Commonwealth parties and
categories of negligence). The PHRC defendants were entitled to sovereign immunity as
to Garys state law claims because none of them fell within those enumerated exceptions.
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Because the District Court lacked subject matter jurisdiction over the state law claims,
they were also properly dismissed. See CNA v. United States, 535 F.3d 132, 146-47 (3d
Cir. 2008).
Additionally, Garys complaint lacked sufficient factual matter to state any claims
against the PHRC defendants that were plausible on their face. Iqbal, 556 U.S. at 678.
Gary alleged that the PHRC defendants violated 42 U.S.C. 1981 in their processing of
his employment discrimination claim. [I]ntentional discrimination on the basis of race
is a required element of a 1981 claim. Hood v. N.J. Dept of Civil Serv., 680 F.2d
955, 959 (3d Cir. 1982). Gary stated that he is African-American in his complaint, but he
did not plead any facts that remotely suggested intentional or purposeful discrimination
against him by the PHRC defendants. If anything, it appears from Garys complaint that
the PHRC defendants attempted to resolve his claim in a manner satisfactory to him, by
assigning [their] best representative to help him. (Dkt. No. 6, 33.)
Gary also alleged that the PHRC defendants engaged in a racially-motivated
conspiracy to violate his constitutional rights under 42 U.S.C. 1985(3) and 1986.
(Dkt. No. 6, 49.) To properly plead such a claim, a plaintiff must allege (1) a
conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal privileges and immunities
under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is
injured in his person or property or deprived of any right or privilege of a citizen of the
United States. Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006). Gary
7

alleged but one sentence to support his conspiracy claim, that is, that certain PHRC
employees along with the commission are conspiring to hinder the relief sought by the
plaintiff. (Dkt. No. 6, 45.) Such a conclusory statement, absent any factual basis, is
insufficient to set forth a plausible claim for relief. Iqbal, 556 U.S. at 678. Absent a
valid 1985(3) claim, Garys claim under 42 U.S.C. 1986 fails, as liability under that
statute is predicated on actual knowledge of a 1985 violation. See Clark v. Clabaugh,
20 F.3d 1290, 1295 (3d Cir. 1994) (transgressions of 1986, by definition, depend on a
preexisting violation of 1985).
Gary alleged that the PHRC defendants violated his Thirteenth Amendment right
to be free from slavery. Nothing in Garys complaint supports this claim. He also
alleged that his Fourteenth Amendment due process and equal protection rights were
violated. To prevail on a due process claim, Gary must have alleged the existence of a
protected liberty interest, which he failed to do. See Mims v. Shapp, 744 F.2d 946, 949
(3d Cir. 1984) (threshold question in determining due process violation is whether there
is a protected interest at issue). Garys claim that his equal protection rights were
violated requires proof of racially discriminatory intent or purpose. Antonelli v. New
Jersey, 419 F.3d 267, 274 (3d Cir. 2005). Again, Garys complaint contained no
allegations to support that the PHRC defendants acted with such intent.
B.

The EEOC Defendants

Garys allegations against the EEOC defendants stemmed from his belief that they
should have investigated or processed his charge of discrimination. He asserted
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substantially the same claims against the EEOC and its District Director, in her official
and individual capacities, as he did against the PHRC defendants.
The District Court properly determined that Garys claims against the EEOC
defendants should be dismissed for lack of subject matter jurisdiction and for failure to
state a claim upon which relief could be granted. 4 Absent waiver, sovereign immunity
shields United States government agencies and their employees, acting in their official
capacities, from suit. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994).
Because sovereign immunity is jurisdictional in nature, the District Court properly
dismissed Garys claims for lack of subject matter jurisdiction. Id.
Further, in order to state a Bivens action against the District Director in her
individual capacity, Gary needed to allege that she deprived him of a constitutional right
while acting under color of federal law. Brown v. Philip Morris Inc., 250 F.3d 789, 800
(3d Cir. 2001). Gary alleged only that the District Director signed a letter informing him
that his charge was received by the EEOC. (Dkt. No. 6, 50.) We agree with the District
Court that Garys allegations against her did not contain sufficient factual matter to state
a plausible claim (Dkt. No. 43, pp. 8-9). Iqbal, 556 U.S. at 677-78. Finally, to the extent
that Gary asserted a claim under the Federal Tort Claims Act (FTCA), that claim was
properly dismissed because the FTCA authorizes suits only against the United States

The EEOC defendants also argued improper service of process, but the District Court
did not reach that issue as it dismissed Garys complaint on other grounds.
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itself, not individual defendants or agencies. 28 U.S.C. 2680(a). The District Court
therefore properly dismissed all of Garys claims against the EEOC defendants.
III.
Because no substantial question is presented by this appeal, we will summarily
affirm the dismissal of Garys complaint with prejudice. 3d Cir. LAR 27.4 and I.O.P.
10.6.

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