NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 13-2063 _____________
MICHAEL P. LEHTONEN, Appellant
v.
GOVERNOR OF THE VIRGIN ISLANDS; VINCENT F. FRAZER; DAVID PAYNE, JR.; BLANCHE FRAZER; OFFICERS JOHN DOE I-IX; OFFICERS JANE DOE I-V; RICHARD ROE I-VI ______________
No. 13-2064 ______________
MICHAEL P. LEHTONEN, Individually and representing the public interest of the people of the Virgin Islands, Appellant
BRENDA J. HOLLAR; KATHLEEN MACKAY; JAMES CARROLL, III ______________
ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Nos. 3-11-cv-00134, 3-12-cv-00012) District Judge: Honorable Curtis V. Gomez ______________
Submitted Under Third Circuit LAR 34.1(a) December 12, 2014 ______________
Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges. (Opinion Filed: December 12, 2014) ______________
OPINION* ______________
SHWARTZ, Circuit Judge.
Michael Lehtonen appeals from the District Court’s dismissal of his complaints
against various judges and government officials under Fed. R. Civ. P. 12(b)(6). For the
reasons that follow, we will affirm.
I
Lehtonen’s pro se complaints flow from a landlord–tenant dispute. Lehtonen was
a tenant in a St. Thomas apartment owned by David Payne, Jr. App. 10. Payne
commenced a forcible entry and detainer action against Lehtonen in the Superior Court of
the Virgin Islands (the “FED Action”) after Lehtonen defaulted on his rent payments.
App. 10. Lehtonen filed a counterclaim against Payne for damages for using self-help in
attempting to evict Lehtonen. App. 10. The presiding judge, Kathleen Mackay,
dismissed the entire FED Action. Supp. App. 1. Lehtonen moved to set aside the
dismissal, arguing that Judge Mackay failed to address his counterclaims. Supp. App. 2-
6. Judge Mackay then issued an order dismissing without prejudice his counterclaims as
beyond the scope of the FED Action’s jurisdiction. Supp. App. 7-9. Lehtonen moved to
set aside that dismissal, Supp. App. 10-15, which was treated as an appeal, Supp. App.
20. The appeal was first assigned to Judge James Carroll, III, who recused himself,
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Supp. App. 35, and then to Judge Brenda J. Hollar, Supp. App. 27. Judge Hollar
affirmed Judge Mackay’s orders dismissing the FED Action and Lehtonen’s
counterclaims. Supp. App. 16-24.
Lehtonen then commenced two federal suits. He sued Virgin Islands Governor
John P. De Jongh, Jr., Virgin Islands Attorney General Vincent F. Frazer, and various
unnamed Virgin Islands police officers for damages for failing to intervene in his
landlord–tenant dispute with Payne.1 App. 28-33. Separately, Lehtonen sued Judges
Caroll, Hollar, and Mackay (collectively, the “Judges”), alleging that their rulings with
respect to the FED Action violated his civil rights and that their purported falsification of
a return of service constituted abuse of process. Supp. App. 25-31.
De Jongh, Frazer, and the Judges moved to dismiss Lehtonen’s complaints under
Fed. R. Civ. P. 12(b)(6). Supp. App. 32-48, 77-92. The District Court granted their
motions. Lehtonen appeals.
II2
We exercise plenary review of an order granting a motion to dismiss and apply the
same standard as the District Court. See Santomenno ex rel. John Hancock Trust v. John
Hancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014). We accept all facts alleged in
the complaints as true and construe them in a light most favorable to the plaintiff. Id.
Viewing the facts this way, we must determine whether the complaints “contain
1 Lehtonen also named as defendants Payne and Blanche Frazer, Payne’s mother, App. 28-29, who were both dismissed for reasons unrelated to this appeal. 2 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). We exercise jurisdiction over these consolidated appeals under 28 U.S.C. § 1291. 3 sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim “has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d
Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
III
We first examine Lehtonen’s complaint against De Jongh and Frazer. Lehtonen
alleges only that De Jongh and Frazer failed to respond to his letter “request[ing ]
assistance in a violent situation” involving Payne and his mother, two private citizens,
App. 30, and thereby violated his federal civil rights.3 This activity, however, does not
provide a basis for relief because the government’s “failure to protect an individual
against private violence simply does not constitute a violation of the Due Process
Clause.” Henry v. City of Erie, 728 F.3d 275, 281 (3d Cir. 2013) (quoting DeShaney v.
Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989)); Bright v.
Westmoreland Cnty., 443 F.3d 276, 284 (3d Cir. 2006) (liability under the Due Process
Clause “requires affirmative state action”). Because Lehtonen has not alleged “any facts
that would establish that [De Jongh or Frazer] did anything other than fail to act,” he has
not stated a claim under § 1983. Burella v. City of Phila., 501 F.3d 134, 147 (3d Cir.
3 Lehtonen does not raise any non-constitutional claims in his brief. As such, any claims other than those brought under § 1983 were not preserved for this appeal. Free Speech Coalition, Inc. v. Att’y Gen. of U.S., 677 F.3d 519, 545 (3d Cir. 2012) (an appellant “must set forth the issues raised on appeal and . . . present an argument in support of those issues in their opening brief”). 4 2007); Bright, 443 F.3d at 284 (“no affirmative duty to protect arises from the State’s
knowledge of the individual’s predicament” (quotation marks omitted)). Therefore, the
District Court correctly dismissed the complaint against De Jongh and Frazer.4
We next examine Lehtonen’s complaint against the Judges. His allegations
against them stem from their rulings and the “appeals process in the Superior Court”
regarding his claim against Payne. Supp. App.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 13-2063 _____________
MICHAEL P. LEHTONEN, Appellant
v.
GOVERNOR OF THE VIRGIN ISLANDS; VINCENT F. FRAZER; DAVID PAYNE, JR.; BLANCHE FRAZER; OFFICERS JOHN DOE I-IX; OFFICERS JANE DOE I-V; RICHARD ROE I-VI ______________
No. 13-2064 ______________
MICHAEL P. LEHTONEN, Individually and representing the public interest of the people of the Virgin Islands, Appellant
BRENDA J. HOLLAR; KATHLEEN MACKAY; JAMES CARROLL, III ______________
ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Nos. 3-11-cv-00134, 3-12-cv-00012) District Judge: Honorable Curtis V. Gomez ______________
Submitted Under Third Circuit LAR 34.1(a) December 12, 2014 ______________
Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges. (Opinion Filed: December 12, 2014) ______________
OPINION* ______________
SHWARTZ, Circuit Judge.
Michael Lehtonen appeals from the District Court’s dismissal of his complaints
against various judges and government officials under Fed. R. Civ. P. 12(b)(6). For the
reasons that follow, we will affirm.
I
Lehtonen’s pro se complaints flow from a landlord–tenant dispute. Lehtonen was
a tenant in a St. Thomas apartment owned by David Payne, Jr. App. 10. Payne
commenced a forcible entry and detainer action against Lehtonen in the Superior Court of
the Virgin Islands (the “FED Action”) after Lehtonen defaulted on his rent payments.
App. 10. Lehtonen filed a counterclaim against Payne for damages for using self-help in
attempting to evict Lehtonen. App. 10. The presiding judge, Kathleen Mackay,
dismissed the entire FED Action. Supp. App. 1. Lehtonen moved to set aside the
dismissal, arguing that Judge Mackay failed to address his counterclaims. Supp. App. 2-
6. Judge Mackay then issued an order dismissing without prejudice his counterclaims as
beyond the scope of the FED Action’s jurisdiction. Supp. App. 7-9. Lehtonen moved to
set aside that dismissal, Supp. App. 10-15, which was treated as an appeal, Supp. App.
20. The appeal was first assigned to Judge James Carroll, III, who recused himself,
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Supp. App. 35, and then to Judge Brenda J. Hollar, Supp. App. 27. Judge Hollar
affirmed Judge Mackay’s orders dismissing the FED Action and Lehtonen’s
counterclaims. Supp. App. 16-24.
Lehtonen then commenced two federal suits. He sued Virgin Islands Governor
John P. De Jongh, Jr., Virgin Islands Attorney General Vincent F. Frazer, and various
unnamed Virgin Islands police officers for damages for failing to intervene in his
landlord–tenant dispute with Payne.1 App. 28-33. Separately, Lehtonen sued Judges
Caroll, Hollar, and Mackay (collectively, the “Judges”), alleging that their rulings with
respect to the FED Action violated his civil rights and that their purported falsification of
a return of service constituted abuse of process. Supp. App. 25-31.
De Jongh, Frazer, and the Judges moved to dismiss Lehtonen’s complaints under
Fed. R. Civ. P. 12(b)(6). Supp. App. 32-48, 77-92. The District Court granted their
motions. Lehtonen appeals.
II2
We exercise plenary review of an order granting a motion to dismiss and apply the
same standard as the District Court. See Santomenno ex rel. John Hancock Trust v. John
Hancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014). We accept all facts alleged in
the complaints as true and construe them in a light most favorable to the plaintiff. Id.
Viewing the facts this way, we must determine whether the complaints “contain
1 Lehtonen also named as defendants Payne and Blanche Frazer, Payne’s mother, App. 28-29, who were both dismissed for reasons unrelated to this appeal. 2 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). We exercise jurisdiction over these consolidated appeals under 28 U.S.C. § 1291. 3 sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim “has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d
Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
III
We first examine Lehtonen’s complaint against De Jongh and Frazer. Lehtonen
alleges only that De Jongh and Frazer failed to respond to his letter “request[ing ]
assistance in a violent situation” involving Payne and his mother, two private citizens,
App. 30, and thereby violated his federal civil rights.3 This activity, however, does not
provide a basis for relief because the government’s “failure to protect an individual
against private violence simply does not constitute a violation of the Due Process
Clause.” Henry v. City of Erie, 728 F.3d 275, 281 (3d Cir. 2013) (quoting DeShaney v.
Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989)); Bright v.
Westmoreland Cnty., 443 F.3d 276, 284 (3d Cir. 2006) (liability under the Due Process
Clause “requires affirmative state action”). Because Lehtonen has not alleged “any facts
that would establish that [De Jongh or Frazer] did anything other than fail to act,” he has
not stated a claim under § 1983. Burella v. City of Phila., 501 F.3d 134, 147 (3d Cir.
3 Lehtonen does not raise any non-constitutional claims in his brief. As such, any claims other than those brought under § 1983 were not preserved for this appeal. Free Speech Coalition, Inc. v. Att’y Gen. of U.S., 677 F.3d 519, 545 (3d Cir. 2012) (an appellant “must set forth the issues raised on appeal and . . . present an argument in support of those issues in their opening brief”). 4 2007); Bright, 443 F.3d at 284 (“no affirmative duty to protect arises from the State’s
knowledge of the individual’s predicament” (quotation marks omitted)). Therefore, the
District Court correctly dismissed the complaint against De Jongh and Frazer.4
We next examine Lehtonen’s complaint against the Judges. His allegations
against them stem from their rulings and the “appeals process in the Superior Court”
regarding his claim against Payne. Supp. App. 27-30. For example, Lehtonen claims
that Judges issued “[i]nsupportable decision[s]” at the eviction hearing and on his motion
for reconsideration, Judge Carroll recused himself without “meet[ing] any of the judicial
standards,” and the Judges “fail[ed] to route” the court’s decision to him. Supp. App. 27-
28. Each act “undeniably was a judicial act.” Gallas v. Sup. Ct. of Pa., 211 F.3d 760,
770 (3d Cir. 2000) (issuance of an order “is certainly a function normally performed by a
judge” (quotation marks omitted)). “A judicial officer in the performance of his duties
has absolute immunity from suit and will not be liable for his judicial acts.” Azubuko v.
Royal, 443 F.3d 302, 303 (3d Cir. 2006). This holds true even if the action “was in error,
was done maliciously, or was in excess of his authority.” Stump v. Sparkman, 435 U.S.
349, 356 (1978). Whether an act is “judicial” depends on “whether it is a function
4 Dismissal was also appropriate because damages are not recoverable from officers of the Virgin Islands acting in their official capacity. Brow v. Farrelly, 994 F.2d 1027, 1037 n.12 (3d Cir. 1993) (a damages claim is “not actionable against territorial officials in their official capacities under 42 U.S.C. § 1983”). Here, Lehtonen seeks damages from DeJongh and Frazer’s failure to respond to a letter Lehtonen sent to “the Governor of the Virgin Islands[] complaining about” Payne and his mother’s conduct. App. 30. Because Lehtonen seeks relief based on action De Jongh and Frazer failed to take “in their official capacities,” he “cannot seek money damages against them.” McCauley v. Univ. of the V.I., 618 F.3d 232, 240 (3d Cir. 2010). 5 normally performed by a judge, and . . . whether [the parties] dealt with the judge in his
judicial capacity.” Id. at 362.
Each act Lehtonen describes involves rulings and acts the Judges took as part of
their judicial duties.5 Moreover, Lehtonen alleges no facts suggesting that the Judges
“acted in the absence of jurisdiction.”6 Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180,
182-84 (3d Cir. 2009) (affirming dismissal of § 1983 claims against judges for their
“alleged judicial misconduct in [the plaintiff]’s state court cases”). Lastly, because
judicial immunity “is not overcome by allegations of bad faith or malice,” Mireles v.
Waco, 502 U.S. 9, 11 (1991), Lehtonen’s allegations of the Judges’ “malice,” Appellant
Br. 16, and “bad faith,” Appellant Br. 18, do not provide a basis for relief. Dismissal of
Lehtonen’s § 1983 claims against the Judges was therefore appropriate.7
IV
For the foregoing reasons, we will affirm the judgments of the District Court.
5 Lehtonen’s abuse of process claim, which alleges that the Judges “falsified a return of service” of Judge Hollar’s decision affirming dismissal of his counterclaims, Supp. App. 28, 30, fails for the same reason. Even if it were not barred by judicial immunity, Lehtonen does not allege any facts that plausibly show that the return of service constituted a “perversion of that process” that harmed Lehtonen or that accepting the return of service was “so lacking in justification as to lose its legitimate function.” Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 304, 308 (3d Cir. 2003). 6 A judge is subject to liability “only when he has acted in the clear absence of all jurisdiction.” Azubuko, 443 F.3d at 303 (quoting Stump, 435 U.S. at 356-57). 7 The District Court’s decision not to grant leave to amend was also correct because amendments here would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). 6