Johnny Lopez v. U.s. Department of Justice

DLD-399 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 07-3230
________________
JOHNNY LOPEZ,
Appellant
v.
U.S. DEPARTMENT OF JUSTICE; PETER T. DALLEO
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 06-cv-00190)
District Judge: Honorable Gregory M. Sleet
____________________________________
Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
September 27, 2007
Before: BARRY, AMBRO and FISHER, CIRCUIT JUDGES
(Filed: October 15, 2007 )
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OPINION
_______________________
PER CURIAM
This is an appeal from the District Court’s dismissal of Johnny Lopez’s complaint
and his subsequent motion for relief from judgment. For the following reasons, we will
dismiss this appeal. See 28 U.S.C. § 1915(e)(2)(B)(i).

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Lopez v. Williams, Civ. Action No. 02-120-GMS (D. Del. Mar. 29, 2004).1
Lopez v. Delaware, Civ. Action No. 03-936-GMS (D. Del. June 16, 2004).2
2
On March 21, 2006, Appellant, an inmate at Delaware Correctional Center, filed a
civil rights action pursuant to 42 U.S.C. § 1983. Appellant alleges that Peter T. Dalleo,
Clerk of Court for the U.S. District Court of Delaware, improperly sent Appellant’s
previous civil actions for dismissal. Specifically, Appellant claims that Dalleo sent his
February 2002 civil rights complaint to the court for dismissal even though the defendant1
in that case, Warden Raphael Williams, “never responded or sent any motions to
dismiss.” Appellant also alleges that Dalleo sent his September 2003 suit against the
State of Delaware for dismissal before the State of Delaware responded to his claims. In2
the complaint Appellant makes no specific allegations against the U.S. Department of
Justice (“DOJ”) except to demand that it pay him ten million dollars in damages. On
June 19, 2007, the District Court entered an order dismissing Appellant’s complaint
without prejudice for failure to state a claim upon which relief may be granted pursuant to
28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). Appellant filed a timely notice of appeal
from that order.
We review de novo the District Court’s dismissal of a complaint under 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(b). See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004).

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3
Section 1983 creates a remedy to redress a deprivation of a federally protected
right by a person acting under color of state law. Harvey v. Plains Twp. Police Dep’t, 421
F.3d 185, 189 (3d Cir. 2005). The DOJ is a federal agency, and Dalleo, clerk for a federal
district court, is a federal employee. Section 1983 is inapplicable to persons acting under
color of federal law. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389 n.1
(1971) (Harlan, J., concurring). Therefore, section 1983 does not apply to Appellant’s
claims. Moreover, Appellant’s claim against the DOJ would fail even if he had filed his
claims under Bivens, which governs civil rights claims against federal defendants. The
DOJ is a federal agency and the Supreme Court has held that federal agencies are not
appropriate defendants for Bivens actions. See Fed. Deposit Ins. Corp. v. Meyer, 510
U.S. 471, 486 (1994).
Finally, Appellant’s complaints against Dalleo are without legal merit. Appellant
claims that Dalleo sent his cases for dismissal without “starting” the case. Dalleo’s
actions in both of Appellant’s cases were part of a screening process required by statute.
See 28 U.S.C. 1915A(b); Ray v. Kertes, 285 F.3d 287, 296 n.11 (3d Cir. 2002) (noting
that sections 1915A(a)-(b) direct dismissal before docketing under certain circumstances).
Appellant also claims that Dalleo never sent him notice that his two motions “to start the
case” in Lopez v. Williams were denied. The District Court docket, however, clearly
indicates that Appellant was sent notice of the denials on March 29, 2004. Thus,
Appellant has failed to allege deprivation of an interest protected by the Constitution.

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4
In sum, because Lopez’s appeal lacks arguable legal merit, we will dismiss it
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

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