09-4138 & 09-4324 (cons.) KARL E. WHITE v. G. Michael Green

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3412, 09-4138 & 09-4324 (cons.)
___________
KARL E. WHITE,
Appellant
v.
G. MICHAEL GREEN; CHRIS D. ROSATO; IAN MCCURDY; LORI ANDERSON;
MARY MANN; JOSEPH CRONIN; WILLIAM R. TOAL, JR.; PHIL PISANI; MS.
LOPRESTI; BARRY C. DOZER; SUE WILLIAMS; MICHAEL F.X. COLL; MIMI
BRADLEY WALKER; DEBRA S. SCHILLING; KATHLEEN CONNOR; GEORGE
HILL CORRECTIONAL FACILITY, individually
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:09-cv-01219)
District Judge: Honorable Thomas N. O’Neill Jr.
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 26, 2010
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges
(Opinion filed June 2, 2010)
_________
OPINION
_________
PER CURIAM
This is an appeal from the District Court’s dismissal of Karl E. White’s pro se civil

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rights complaint. We will affirm.
White initiated his lawsuit in March 2009 by filing an application to proceed in
forma pauperis (IFP). The District Court denied the application citing White’s ability to
pay the $350 filing fee. White then paid the fee and filed a complaint alleging false
imprisonment against state prosecutors, judges, and pre-trial bail officers who denied him
bail in a 2007 criminal case. According to White, he was arrested in April 2007 and held
for 10 months in the George W. Hill Correctional Facility. White also named the
Correctional Facility as a defendant, claiming that it falsely imprisoned him and that
guards there performed unnecessary strip searches. Finally, White claimed that two
judges and three agents from the Delaware County Domestic Relations Department seized
his federal stimulus payment.
All of the defendants, except for the Correctional Facility, filed motions to dismiss.
The District Court granted the motions and allowed White twenty days to file an amended
complaint against the Correctional Facility. White failed to file an amended complaint.
The Correctional Facility then moved to dismiss, citing White’s failure to serve his
complaint in accordance with Fed. R. Civ. P. 4. The District Court granted the motion,
dismissed the complaint, and provided White twenty days to amend and to effectuate
proper service. Instead of amending, White filed a notice of appeal from the District
Court’s order. White filed two other notices of appeal and he challenges ten of the
District Court’s orders on appeal. The Clerk consolidated the appeals.

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White’s first notice of appeal, docketed as C.A. No. 09-3412, was from the District1
Court’s August 4 order granting the first motion to dismiss. At that time, the order was
not appealable inasmuch as White had outstanding claims pending against the
Correctional Facility. The District Court has since dismissed White’s claims against all
parties. The August 4 order is therefore now final and appealable. See Cape May
Greene, Inc. v. Warren, 698 F.2d 179, 185 (3d Cir. 1983) (considering a premature appeal
that is followed by a final order to be an appeal from the final order). Further, White filed
a notice of appeal after the District Court’s final order, triggering the review of all
previous orders.
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We have jurisdiction over the final orders of District Courts under 28 U.S.C.
§ 1291. We exercise plenary review over the District Court’s decision to grant1
defendants’ motions to dismiss. Alaska Elec. Pension Fund v. Pharmacia Corp., 554 F.3d
342, 346 (3d Cir. 2009). To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible when its factual content allows the court to draw a reasonable inference that a
defendant is liable for the alleged misconduct. See Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009). We review the District Court’s order dismissing a complaint for improper
service for abuse of discretion. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298,
1308 (3d Cir. 1995). We review the denial of leave to proceed IFP for abuse of
discretion. See Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir. 1985).
First, we find that the District Court did not abuse its discretion in requiring White
to pay the $350 filing fee. In his declaration in support of his IFP application, White
stated that he earned $1,144 per month from his job. He also stated that he did not pay

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White also filed a notice of appeal from the District Court’s decision to grant him IFP2
on appeal. Inasmuch as he was not aggrieved by the District Court’s order, he lacks
standing to appeal it. See Watson v. City of Newark, 746 F.2d 1008, 1010 (3d Cir. 1984).
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rent, that he paid $30 a week in child support payments, and that he received food stamps.
Given White’s financial resources, the filing fee did not impermissibly “‘force [him] to
abandon what may be a meritorious claim in order to spare himself complete
destitution.’” Id. at 79 (quoting Adkins v. Dupont Co., 335 U.S. 331, 340 (1949)).2
Second, we agree with the District Court that White’s complaint failed to state a
plausible claim for relief. White’s claims against judicial defendants for presiding over
his civil and criminal cases are barred by absolute judicial immunity. See Stump v.
Sparkman, 435 U.S. 349, 362 (1978) (listing requirements for application of judicial
immunity). Moreover, the prosecutorial defendants are also immune from civil suits for
initiating and presenting a criminal case against White. Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993); see also Ernst v. Child and Youth Servs. of Chester County, 108
F.3d 486, 502 (3d Cir. 1997) (noting that immunity applies even if the prosecutor acted in
bad faith).
We also agree that the District Court properly dismissed White’s claims against the
bail agency defendants. White’s only allegation against the bail agency defendants was
that they denied him bail. In Pennsylvania, however, only a court may deny a defendant
bail. See Commonwealth v. Dixon, 907 A.2d 468, 477 n.12 (Pa. 2006) (“Article I,
Section 14 of the Pennsylvania Constitution permits courts to deny bail when ‘no

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condition or combination other than imprisonment will reasonably assure the safety of
any person in the community.’”) White has not alleged a plausible claim that non-judicial
actors somehow denied him bail. Therefore, White did not state a claim on which relief
could be granted.
Similarly, White did not state a viable claim against the defendants who work for
the Delaware County Domestic Relations Department. White alleges that these
defendants were “the motivating force” behind two judges who seized White’s federal
stimulus payment. The stimulus payment, however, was seized pursuant to a state court
child support order. The individual defendants who were carrying out the court’s order
are immune from civil suit. See Gallas v. Sup. Ct. of Pa., 211 F.3d 760, 772-73 (3d Cir.
2000). Given the futility of attempting to sue defendants who are immune from suit, we
also hold that the District Court did not abuse its discretion in denying White’s attempts
to amend his complaint against the non-Correctional Facility defendants. See Foman v.
Davis, 371 U.S. 178, 192 (1962) (District Court may, at its discretion, refuse to grant
leave to amend where amendment would be futile).
The District Court also did not abuse its discretion in dismissing the claims against
the Correctional Facility, owned by local government, for improper service. Federal Rule
of Civil Procedure 4(j)(2) requires that a local government be served “by delivering a
copy of the summons and of the complaint to its chief executive officer” or by a process
permitted under Pennsylvania law. Under Pennsylvania law, service could be effectuated

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We also agree with the District Court’s denial of White’s motion to disqualify. The3
record does not support the appearance of bias or prejudice on the part of the District
Court Judge. Nor did White demonstrate that he met the requirements for a temporary
injunction.
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by handing a copy to (1) an agent duly authorized, or 2) the person in charge at the office
of the defendant, or 3) the mayor, or the president, chairman, secretary or clerk of the tax
levying body thereof, or in some cases, the chairman or clerk of the board of county
commissioners. See Pa. R. Civ. P. 422(b). White sent a copy of the complaint to the
Correctional Facility via certified mail. This method does not comply with either
provisions of Rule 4. Further, White has not shown good cause for his failure to serve the
Correctional Facility. See Petrucelli, 46 F.3d at 1305. The District Court, therefore, did
not abuse its discretion in dismissing the complaint for improper service. Inasmuch as
White did not properly serve the Correctional Facility, the District Court also properly
denied White’s motion for default judgment. See Gold Kist Inc. v. Laurinburg Oil Co.,
756 F.2d 14, 19 (3d Cir. 1985) (“A default judgment entered when there has been no
proper service of complaint is, a fortiori, void, and should be set aside.”)
For the foregoing reasons, we will affirm the District Court’s order dismissing
White’s civil suit.3

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