NOT PRECEDENTIAL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

                                           v.

     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., 

, 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. 

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, 

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

, 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, 

, 147 (3d

Cir. 2014) (quoting 

).

                                                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, 

, 281 (3d Cir. 2013) (quoting DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 

, 197 (1989)); Bright v.

Westmoreland Cnty., 

, 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., 

, 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., 

, 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); 

(“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., 

,

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, 

, 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, 

, 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, 

, 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., 

, 240 (3d Cir. 2010).
                                             5
normally performed by a judge, and . . . whether [the parties] dealt with the judge in his

judicial capacity.” 

       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., 

,

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, 

, 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., 

, 304, 308 (3d Cir. 2003).
       6
         A judge is subject to liability “only when he has acted in the clear absence of all
jurisdiction.” 

(quoting 

).
       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., 

, 108 (3d Cir. 2002).
                                             6