Richard O’brien v. STATE OF NEW JERSEY On Appeal From the United States District Court For the…

*RESUBMIT BPS-342
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-2452
________________
RICHARD O’BRIEN,
Appellant
v.
STATE OF NEW JERSEY
______________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil No. 05-cv-03809)
District Judge: Honorable Garrett E. Brown, Jr.
________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
January 8, 2007
Before: RENDELL, AMBRO and ROTH, Circuit Judges
(Filed: April 3, 2007)
________________
OPINION OF THE COURT
_______________
PER CURIAM
Appellant, Richard O’Brien, timely appeals from the District Court’s grant
of defendant’s Motion to Dismiss based on sovereign immunity.
O’Brien is a former firefighter for the City of Hackensack who claims that

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1 The proposed amendment to the complaint would have been futile. Suits against
state officers acting in their official capacities are treated the same as suits against the
state itself, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989), except in limited
circumstances not present here. See, e.g., Verizon Md., Inc. v. Public Servs Comm’n,
535 U.S. 635, 645 (2002).
2
the State of New Jersey violated his constitutional rights by mishandling the appeal of his
discharge from that employment. Specifically, he alleges that the State Department of
Personnel acted improperly by rejecting his appeal due to his failure to attend a hearing
that was held ten months before he had filed that appeal. He sought to have the District
Court waive the time limitation on his appeal, overturn the underlying employment
decision, and award money damages. The District Court denied his motion to file an
amended complaint adding as defendants various State officers acting in their official
capacities.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and undertake
plenary review of the District Court’s ruling on immunity. See United States v. Gov’t of
V.I., 363 F.3d 276, 284 (3d Cir. 2004). States may not be sued by private parties in
federal court unless Congress has exercised its limited power to authorize such suits or
the state waives its sovereign immunity by consenting to suit. See Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70 (1999). Here, the State
of New Jersey is the only defendant. 1 As sovereign immunity has neither been abrogated
by Congress nor waived by the state in this case, we conclude that the complaint was

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2 On December 7, 2006, we requested that appellant submit a two-page brief
addressing the sovereign immunity issue. Appellant’s motion to increase the page limit
of his brief in response to court order from two to four pages is granted. We have given
full consideration to all arguments contained in the submitted brief.
3
properly dismissed. 2
Accordingly, we will affirm the order of the district court. Appellant’s
motion for appointment of counsel is denied.

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