NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 23-2030 ___________
ANDREW FULLMAN, Appellant v.
CITY OF PHILADELPHIA; BARBARA A. MCDERMOTT; RICHARD ROSS, JR., Police Commissioner; EILEEN A. BONNER; JOHNNIE MAE CARTER, #1305; WILLIAM DORNEY ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civil Action No. 2:17-cv-02673) District Judge: Honorable Eduardo C. Robreno ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) February 23, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges.
(Opinion filed: March 5, 2024) ___________
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
Pro se appellant Andrew Fullman appeals the District Court’s grant of summary
judgment in favor of defendants in his civil rights case. For the reasons that follow, we
will affirm the District Court’s judgment.
I.
In 2017, Fullman filed a civil rights complaint in the District Court naming as
defendants the City of Philadelphia, former Philadelphia Police Commissioner Richard
Ross, Jr., and Eileen A. Bonner, an agent with the Gun Violence Task Force for the
Pennsylvania Office of Attorney General. He alleged violations of his due process and
equal protection rights, as well as retaliation in violation of 42 U.S.C. § 1983.
Fullman testified to the following facts at a deposition. In 2014, Fullman witnessed
two shootings. In May 2014, he saw Hakeem Harmon shooting a firearm. Fullman gave
a statement about the shooting to Bonner. Fullman never signed a confidential informant
agreement with Bonner, but he claims that Bonner told him that she would not disclose his
statement. In August 2014, he observed a second shooting, where one of the shooters was
his nephew. No one was injured in either shooting.
Fullman maintains that, two years later, Bonner revealed details about his statement
to police officers or a prosecutor, who in turn revealed those details to Harmon and his
nephew. Fullman’s nephew and Harmon threatened Fullman after they found out about
his statement. Fullman then sent letters and complaints to the Philadelphia Police
Department and Commissioner Ross regarding this incident. He also claimed that there
2 had been a coverup of the two shootings because the suspects he had identified were never
arrested or charged.
In his civil rights action, Fullman alleged that Bonner and the Philadelphia Police
Department were negligent in disclosing his statement and that they did so in retaliation
for his complaints about how the police were investigating the shootings. He also alleged
that defendants ignored his letters and complaints. The District Court denied defendants’
early motions to dismiss, ordering defendants to depose Fullman and explaining that it
would hold a discovery conference after defendants filed motions for summary judgment.
At the discovery conference, the District Court instructed Fullman to include
discovery requests in his summary judgment response, and to explain why his requests
were necessary for him to fully complete his response. Fullman then filed a motion seeking
to add new parties to the case; the District Court denied his motion without prejudice. At
Fullman’s request, the case was placed in suspense for several years; he was granted
numerous extensions of time to respond to the defendants’ summary judgment motions.
He ultimately filed summary judgment responses and separately filed a motion with
discovery requests. He also filed a new amended complaint and a separate motion to add
new parties to the case. The District Court granted summary judgment for defendants,
denied Fullman’s motions, and struck his new complaint. Fullman timely appealed.1
1 Fullman sought reconsideration after summary judgment was granted for defendants; his motion was denied. He did not appeal that decision and thus we do not review it here. 3 II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s grant of summary judgment for defendants. See
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment
is appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute of material fact exists if the evidence is sufficient for a reasonable factfinder to
return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
III.
We agree with the District Court’s grant of summary judgment for the defendants.
For Fullman’s § 1983 claim against the City of Philadelphia, he never identified a policy
or custom that resulted in his alleged constitutional violations. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-92 (1978); see also Beck v. City of Pittsburgh, 89 F.3d 966, 971
(3d Cir. 1996). Rather, he claims that his witness statement was improperly released and
that police officers failed to investigate crimes he reported, but there is no record evidence
that either action stemmed from a City policy or custom. There is also no evidence of
Commissioner Ross’s personal involvement with either of these issues, which Fullman
must establish to support a § 1983 claim against him. See Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988). Fullman claims that Ross must have been aware of Bonner’s
disclosure and the alleged coverup because Fullman sent him letters by certified mail to
4 notify him, but there is no evidence that Ross personally received or read the letters, let
alone that he had any involvement with either issue. See id. at 1208.
Next, to the extent that Fullman sought to sue Bonner in her official capacity as an
employee of the Commonwealth of Pennsylvania, state employees in their official
capacities are not “persons” who can be sued for damages under § 1983. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989). Fullman appears to argue in his appellate
brief that he was seeking to sue Fullman in her individual capacity on his due process,
equal protection, and retaliation claims. However, Fullman did not have a constitutionally
protected privacy interest in the information he provided to Bonner as a witness. See
Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3d Cir. 1991) (“[T]he information
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 23-2030 ___________
ANDREW FULLMAN, Appellant v.
CITY OF PHILADELPHIA; BARBARA A. MCDERMOTT; RICHARD ROSS, JR., Police Commissioner; EILEEN A. BONNER; JOHNNIE MAE CARTER, #1305; WILLIAM DORNEY ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civil Action No. 2:17-cv-02673) District Judge: Honorable Eduardo C. Robreno ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) February 23, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges.
(Opinion filed: March 5, 2024) ___________
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
Pro se appellant Andrew Fullman appeals the District Court’s grant of summary
judgment in favor of defendants in his civil rights case. For the reasons that follow, we
will affirm the District Court’s judgment.
I.
In 2017, Fullman filed a civil rights complaint in the District Court naming as
defendants the City of Philadelphia, former Philadelphia Police Commissioner Richard
Ross, Jr., and Eileen A. Bonner, an agent with the Gun Violence Task Force for the
Pennsylvania Office of Attorney General. He alleged violations of his due process and
equal protection rights, as well as retaliation in violation of 42 U.S.C. § 1983.
Fullman testified to the following facts at a deposition. In 2014, Fullman witnessed
two shootings. In May 2014, he saw Hakeem Harmon shooting a firearm. Fullman gave
a statement about the shooting to Bonner. Fullman never signed a confidential informant
agreement with Bonner, but he claims that Bonner told him that she would not disclose his
statement. In August 2014, he observed a second shooting, where one of the shooters was
his nephew. No one was injured in either shooting.
Fullman maintains that, two years later, Bonner revealed details about his statement
to police officers or a prosecutor, who in turn revealed those details to Harmon and his
nephew. Fullman’s nephew and Harmon threatened Fullman after they found out about
his statement. Fullman then sent letters and complaints to the Philadelphia Police
Department and Commissioner Ross regarding this incident. He also claimed that there
2 had been a coverup of the two shootings because the suspects he had identified were never
arrested or charged.
In his civil rights action, Fullman alleged that Bonner and the Philadelphia Police
Department were negligent in disclosing his statement and that they did so in retaliation
for his complaints about how the police were investigating the shootings. He also alleged
that defendants ignored his letters and complaints. The District Court denied defendants’
early motions to dismiss, ordering defendants to depose Fullman and explaining that it
would hold a discovery conference after defendants filed motions for summary judgment.
At the discovery conference, the District Court instructed Fullman to include
discovery requests in his summary judgment response, and to explain why his requests
were necessary for him to fully complete his response. Fullman then filed a motion seeking
to add new parties to the case; the District Court denied his motion without prejudice. At
Fullman’s request, the case was placed in suspense for several years; he was granted
numerous extensions of time to respond to the defendants’ summary judgment motions.
He ultimately filed summary judgment responses and separately filed a motion with
discovery requests. He also filed a new amended complaint and a separate motion to add
new parties to the case. The District Court granted summary judgment for defendants,
denied Fullman’s motions, and struck his new complaint. Fullman timely appealed.1
1 Fullman sought reconsideration after summary judgment was granted for defendants; his motion was denied. He did not appeal that decision and thus we do not review it here. 3 II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s grant of summary judgment for defendants. See
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment
is appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute of material fact exists if the evidence is sufficient for a reasonable factfinder to
return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
III.
We agree with the District Court’s grant of summary judgment for the defendants.
For Fullman’s § 1983 claim against the City of Philadelphia, he never identified a policy
or custom that resulted in his alleged constitutional violations. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-92 (1978); see also Beck v. City of Pittsburgh, 89 F.3d 966, 971
(3d Cir. 1996). Rather, he claims that his witness statement was improperly released and
that police officers failed to investigate crimes he reported, but there is no record evidence
that either action stemmed from a City policy or custom. There is also no evidence of
Commissioner Ross’s personal involvement with either of these issues, which Fullman
must establish to support a § 1983 claim against him. See Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988). Fullman claims that Ross must have been aware of Bonner’s
disclosure and the alleged coverup because Fullman sent him letters by certified mail to
4 notify him, but there is no evidence that Ross personally received or read the letters, let
alone that he had any involvement with either issue. See id. at 1208.
Next, to the extent that Fullman sought to sue Bonner in her official capacity as an
employee of the Commonwealth of Pennsylvania, state employees in their official
capacities are not “persons” who can be sued for damages under § 1983. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989). Fullman appears to argue in his appellate
brief that he was seeking to sue Fullman in her individual capacity on his due process,
equal protection, and retaliation claims. However, Fullman did not have a constitutionally
protected privacy interest in the information he provided to Bonner as a witness. See
Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3d Cir. 1991) (“[T]he information
contained in a police report is not protected by the confidentiality branch of the
constitutional right of privacy.”). He also did not have a constitutionally protected interest
in keeping his reputation intact such that he was deprived of a liberty or property interest.
See Paul v. Davis, 424 U.S. 693, 712 (1976). Setting aside that there is no evidence in the
record that Bonner revealed Fullman’s witness statement to any third party, Fullman has
not explained how Bonner violated any protected constitutional interest beyond conclusory
insistence that she “caused a deprivation of . . . [his] federal rights.” See Appellant’s Br.
at 1. Further, because Fullman has never explained how he was treated differently than
any similarly situated individual, he cannot establish an equal protection claim. See
Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008) (“[T]o state a claim for
‘class of one’ equal protection, a plaintiff must at a minimum allege that he was
intentionally treated differently from others similarly situated by the defendant[.]”).
5 Fullman also cannot establish a § 1983 retaliation claim against Bonner because
there is no record evidence of a causal link between his conduct and the retaliation he
claims occurred. See Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (requiring,
among other factors, “a causal link between the constitutionally protected conduct and the
retaliatory action” to allege a First Amendment retaliation claim under § 1983). Fullman
argues that Bonner retaliated against him by releasing his witness statement because he
complained to the police about an alleged coverup of the crimes he witnessed. However,
according to the record evidence, Fullman began contacting the police about their
investigations only after he was threatened by Harmon and his nephew in 2016, which was
supposedly after his statement was released. This timeline cannot support a finding that
Fullman’s witness statement was released because he complained to police about their
handling of the investigations into the shootings. Fullman’s appellate brief does not clarify
this issue. To the extent that Fullman claims that the defendants retaliated against him for
making a report to Bonner, he has presented no evidence to support that theory.
We see no error in the District Court’s discovery rulings that Fullman challenges on
appeal. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 281 (3d Cir. 2010)
(reviewing a district court’s discovery orders for abuse of discretion, explaining that we
“will not disturb such an order absent a showing of actual and substantial prejudice”). The
District Court held a hearing where it discussed Fullman’s discovery needs and gave him
an opportunity to file discovery requests that were relevant to the claims he sought to bring.
However, Fullman did not explain how the interrogatory answers and documents he sought
would preclude a grant of summary judgment under these circumstances. Many of his
6 requests were legal research questions rather than requests that addressed factual issues,
and he did not explain how his factual requests were relevant to his claims. Fullman argues
on appeal that further discovery would have revealed the names of officers who came to
the crime scenes to collect ballistics evidence and thus must have participated in a coverup
of the shooting investigations, but he has not clarified how this information would have
assisted him in proving his claims.
Finally, the District Court did not err in denying Fullman’s requests to amend his
complaint. See Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d Cir. 2001). One of
his proposed complaints involved wholly unrelated parties and claims. He also sought to
add an officer who responded at the scene of one of the shootings as a party, as well as
officers who responded to his police complaint letters. Although Fullman insists that he
has identified the individuals somehow responsible for the alleged coverup his claims are
based on, he does not dispute in his appellate brief that his proposed amendments were
barred by the applicable statute of limitations. Nor does he meaningfully challenge the
District Court’s conclusion that his proposed amendments did not relate back to his
operative complaint pursuant to Federal Rule of Civil Procedure 15(c) because he could
not show that the proposed defendants had either actual or constructive notice of his
lawsuit.2 See id. at 196 (describing the shared attorney and identity of interest theories of
imputing notice).
2 Similarly, Fullman mentions the District Court’s denial of his request for appointment of counsel but does not explain why he believes that decision was incorrect. In any event, we discern no abuse of discretion in the District Court’s ruling under the circumstances of this case. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). 7 Accordingly, we will affirm the judgment of the District Court.
Additionally, Fullman claims that the District Court was biased against him because it called him “a notorious and prolific litigant.” See Appellant’s Br. at 3. We cannot locate any such reference to Fullman by the District Court in this case; it appears that this statement appeared in a different case brought by Fullman several years ago, where we concluded that it did not support a finding of bias. See Fullman v. City of Phila., 722 F. App’x 242, 245 (3d Cir. 2018) (per curiam). 8