BLD-166                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-4590
                                     ___________

                                GREGG L. SMITH, JR.,
                                             Appellant

                                           v.

                         LUZERNE COUNTY FBI AGENCY
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 3:12-cv-01205)
                     District Judge: Honorable Robert D. Mariani
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 21, 2013

       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                             (Opinion filed: April 10, 2013)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Pro Se Appellant Gregg L. Smith, Jr., appeals the dismissal of his complaint under

28 U.S.C. § 1915(e)(2)(B)(ii). Because the appeal does not present a substantial
question, we will summarily affirm the judgment of the District Court. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6.

       Smith filed this § 1983 civil rights action against Defendant “Luzerne County FBI

Agency,” alleging violations of his right to freedom of speech and “freedom of thought.”

The District Court granted Smith’s application to proceed in forma pauperis. The District

Court then dismissed the complaint, sua sponte, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

(ii) for failure to state a claim on which relief may be granted. Because the named

defendant, “Luzerne County FBI Agency,” does not exist, the District Court interpreted

Smith’s claims as against Luzerne County and held that Smith failed to plead a § 1983

action against a municipality. Additionally, the District Court interpreted Smith’s claims

as against the FBI, finding that Smith’s cause of action was barred by sovereign

immunity. Smith appealed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise

plenary review over the District Court’s dismissal order. See Allah v. Seiverling, 

, 223 (3d Cir. 2000). The legal standard for dismissing a complaint for failure to

state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See 

“a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 

, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 

, 570 (2007)). This Court affirms

a district court’s dismissal for failure to state a claim “only if, accepting all factual
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allegations as true and construing the complaint in the light most favorable to the

plaintiff, we determine that the plaintiff is not entitled to relief under any reasonable

reading of the complaint.” McGovern v. City of Philadelphia, 

, 115 (3d Cir.

2009). We may summarily affirm if the appeal does not present a substantial question,

and may do so on any basis supported by the record. Murray v. Bledsoe, 

,

247 (3d Cir. 2011) (per curiam).

       We agree with the District Court’s determination that Smith’s complaint fails to

state a claim against the Defendant. First, to the extent that Smith intended to bring an

action against Luzerne County, his complaint fails to state a cause of action under § 1983.

Municipal liability under § 1983 only arises if the plaintiff demonstrates that “‘execution

of a government’s policy or custom, whether made by its lawmakers or by those whose

edits or acts may fairly be said to represent official policy, inflicts the injury.’” Andrews

v. City of Phila., 

, 1480 (3d Cir. 1990) (quoting Monell v. Dep’t of Soc.

Serv., 

, 690-91 (1978)). A municipal policy encompasses a “statement,

ordinance, regulation, or decision officially adopted and promulgated by that body’s

officers.” Brown v. Muhlenberg Twp., 

, 215 (3d Cir. 2001) (quoting

). A custom, on the other hand, need not have received formal

approval through official decision-making channels, but it “must have the force of law by

virtue of the persistent practices” of municipal officials. 

S.H.

Kress & Co., 

, 167 (1970)). Furthermore, a municipality cannot be

constitutionally liable under the doctrine of respondeat superior. See City of Canton v.
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Harris, 

, 385 (1989). Here, Smith has made no allegations regarding

Luzerne County’s policies or customs. Therefore, his § 1983 claims against the

defendant fail.

       Additionally, Smith’s complaint fails to state a cause of action to the extent that

Smith intended to bring a suit against the FBI. “Absent a waiver, sovereign immunity

shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 

, 475 (1994) (citations omitted). Here, there are no allegations that the United States

waived immunity. Therefore, Smith has not stated a viable claim against the defendant.

       Accordingly, we deny Smith’s motion for appointment of counsel and will

summarily affirm the District Court’s order dismissing Smith’s complaint because the

appeal presents no substantial question.




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