NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-2164
                                      ____________

                                 VANDYKE JOHNSON,
                                              Appellant

                                             v.

                    NJ PROBATION OFFICER ROSE DUNCAN, in
                her official and individual capacity; JOSEPH CHARLES,
                 JR., in his official and individual capacity; BENJAMIN
                   BERNOUY, in his individual and official capacity;
                  HUDSON COUNTY SHERIFF’S DEPARTMENT;
                   COUNTY OF HUDSON COUNTY NEW JERSEY
                         __________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                               (D.C. Civ. No. 17-cv-02624)
                      District Judge: Honorable Susan D. Wigenton
                       __________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 3, 2017
              Before: RESTREPO, SCIRICA and FISHER, Circuit Judges

                             (Opinion filed October 4, 2017)
                                     ____________

                                        OPINION
                                      ____________





  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Vandyke Johnson appeals from an order of the District Court dismissing his in

forma pauperis complaint sua sponte pursuant to Federal Rule of Civil Procedure

12(b)(6) and denying him leave to amend. For the reasons that follow, we will affirm

with a modification.

       On April 17, 2017, Johnson filed his civil rights action, 42 U.S.C. § 1983, in the

United States District Court for the District of New Jersey against the County of Hudson

and its Sheriff’s Department, Benjamin Bernouy, a Sheriff’s Department employee,

Probation Officer Rose Duncan, and Family Court Judge Joseph Charles, Jr., alleging

federal and state violations of his rights. Johnson alleged that he was detained at JFK

International Airport in New York by United States Customs Officer Kevin Adetola on

April 15, 2015, when he arrived back from a vacation in the Dominican Republic.

Specifically, federal officer Adetola detained Johnson on the basis of an outstanding

Hudson County, New Jersey warrant for his arrest. Complaint, at ¶¶ 21-23. Johnson

claimed that the warrant was invalid because it was based on a fabricated criminal

complaint that he had violated his probation when in fact his probation had expired. 

2, 24-25. Johnson alleged that, while detained at the airport, he contacted his

attorney and was able to obtain documentation to show that the warrant was invalid. 

23. Adetola, after being advised by Johnson that the warrant was invalid, allegedly

contacted defendant Detective Bernouy of the Hudson County Sheriff’s Department, 

Bernouy allegedly told Adetola that the warrant was valid, 

29. A
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New Jersey judge vacated the warrant the next day, on April 16, 2015, 

2, and after

that Johnson was released. In addition to these allegations, Johnson alleged that

defendant Probation Officer Rose Duncan caused the invalid warrant to be issued even

though she knew that Johnson was no longer on probation, 

25.

       The specific counts alleged in the complaint were as follows. In Count I, Johnson

alleged a violation of § 1983 for false imprisonment and malicious prosecution against

Duncan for seeking the 2013 warrant based on information she knew to be false and

against Bernouy for telling Adetola that the warrant was valid when it was not. In Count

II, Johnson alleged the same § 1983 claims against the Hudson County Sheriff’s

Department for failing to adequately train and supervise Detective Bernouy and for

failing to promulgate adequate policies. In Counts III and IV, Johnson sought an

injunction invalidating a Final Restraining Order -- issued by Judge Charles allegedly in

violation of Johnson’s Fourteenth Amendment rights -- and restoration of his Second

Amendment rights. In Count V, Johnson alleged a state law tort of false imprisonment

against Duncan and Bernouy. In Count VI, Johnson alleged that the defendants

negligently violated his Fourteenth Amendment rights by obtaining a warrant under false

pretenses and “not deleting the warrant out of their computer,” and against Hudson

County for allegedly failing to adequately train and supervise Duncan and Bernouy.

Johnson sought money damages and injunctive relief.

       The District Court granted Johnson leave to proceed in forma pauperis, and then,

in an order entered on May 18, 2018, the Court sua sponte issued a form order dismissing

Johnson’s complaint pursuant to Federal Rule of Civil Procedure 8(a)(2), Rule 12(b)(6),

and Ashcroft v. Iqbal, 

(2009), for failure to state a claim upon which relief
                                            3
may be granted. The Court stated without explanation that Johnson’s claims were barred

by the statute of limitations, and that, in addition, several defendants would be protected

by immunity from suit. The Court further held that any amendment would be futile.

       Johnson appeals. We have jurisdiction under 28 U.S.C. § 1291. We may affirm

on any basis supported by the record. See Murray v. Bledsoe, 

, 247 (3d Cir.

2011) (per curiam). A complaint that is filed in forma pauperis under 28 U.S.C. §

1915(a) may be dismissed “at any time” if the District Court determines that it “fails to

state a claim on which relief may be granted,” 

1915(e)(2)(B)(ii). Under Federal

Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of

the claim showing that the pleader is entitled to relief.” Rule 8(a)(2) calls for sufficient

factual matter, accepted as true, to “state a claim to relief that is plausible on its face,”

Bell Atlantic Corp. v. Twombly, 

, 570 (2007). “[T]he Federal Rules do not

require courts to credit a complaint’s conclusory statements without reference to its

factual context.” Ashcroft v. Iqbal, 

, 686 (2009).

       In his pro se brief, Johnson argues that his suit is timely filed within two years of

the date he was released from detention under Manuel v. City of Joliet, 

(2017), which held that the Fourth Amendment provides a basis under § 1983 for

challenging unlawful pretrial detention. He further contends that the District Court erred

in immunizing some of the defendants from suit. Johnson has clarified that his probation

supervision was transferred to New York from New Jersey and that it ended on October

10, 2013, about a month before the warrant for his arrest issued. Appellant’s Informal

Brief, at 2. He has clarified that his attorney provided Adetola with documentation

concerning the transfer to New York, 

was not satisfied, and that he then
                                             4
contacted New York Port Authority Police Officer Darby about making an arrest, 

was taken into custody by Port Authority Officer Darby, id.1 Johnson has clarified

that he telephoned his attorney on April 16, 2015 and that his attorney then went to the

Hudson County Courthouse and “had [the] invalid warrant recalled by [a] New Jersey

State Judge,” 

and that he then was released from custody on April 17, 2015, id.2

       We will affirm. We address the matters that are relatively straightforward first.

With respect to defendant Family Court Judge Charles, Johnson has failed to allege any

action, either in his complaint or his Informal Brief, that would be adequate to

demonstrate personal involvement on the part of Judge Charles in connection with the §

1983 claims of false imprisonment and malicious prosecution. See Rode v. Dellarciprete,

, 1207 (3d Cir. 1988) (under 42 U.S.C. § 1983 plaintiff must demonstrate

that each defendant was personally involved in alleged wrongdoing). The November 15,

2013 warrant, which Johnson attached to his complaint, was issued by a different state

judge; it was issued when Johnson, in apparent contempt of court, failed to appear before

the Honorable Frederick J. Theemling, Jr. on the probation violation matter. Johnson’s

allegations of Fourteenth and Second Amendment violations and request for injunctive

relief appear to concern, not his claims for false imprisonment and malicious prosecution,

but rather a Final Restraining Order issued against him in a domestic violence matter,

which remains in force. Accordingly, we uphold the sua sponte dismissal of Johnson’s


1
 Johnson has sued Adetola and Darby in federal court in the Southern District of New
York. 

2
 Because of the thoroughness of Johnson’s Informal Brief, a remand so that he may
amend his complaint would be futile, see Grayson v. Mayview State Hospital, 

, 108 (3d Cir. 2002).
                                           5
complaint as to Judge Charles on the basis of lack of personal involvement in the matter

of Johnson’s alleged unlawful detention. With respect to the Final Restraining Order, we

uphold the dismissal of the complaint on the basis of immunity from suit. Johnson

alleged no facts to show that Judge Charles’ actions were taken in the clear absence of

jurisdiction, Stump v. Sparkman, 

, 357 (1978), and thus, Judge Charles is

absolutely immunized from a suit for damages. As to Counts III and IV, injunctive relief

is not available against a judicial officer unless a declaratory decree was violated or

declaratory relief is unavailable, 42 U.S.C. § 1983; Brandon E. ex rel. Listenbee v.

Reynolds, 

, 197-98 (3d Cir. 2000), which Johnson does not allege.

       We further conclude that the doctrine of sovereign immunity protects Hudson

County and its Sheriff’s Department from suit in federal court, as well as defendants

Duncan and Bernouy to the extent that they were sued in their official capacities. The

Eleventh Amendment protects states and their agencies and departments from suit in

federal court. Pennhurst State School & Hospital v. Halderman, 

, 100 (1984).

A state cannot be sued in federal court by citizens of another state or its own citizens,

Edelman v. Jordan, 

, 662-63 (1974), or by citizens of a foreign state, Hans v.

Louisiana, 

, 10 (1890). Moreover, a suit against a state official in his or her

official capacity “is not a suit against the official but rather is a suit against the official’s

office.” Will v. Michigan Dept. of State Police, 

, 71 (1989). As such, it is no

different from a suit against the State itself. 

and its Sheriff’s

Department are agents of the state of New Jersey for Eleventh Amendment purposes and

therefore not amenable to suit in federal court, see Wright v. State, 

(N.J.


                                                6
2001).3 Accordingly, we uphold the sua sponte dismissal of the complaint in its entirety

as to Hudson County and its Sheriff’s Department and defendants Duncan and Bernouy

to the extent that they were sued in their official capacities.

       We turn our attention then to the issue of the timeliness of Johnson’s § 1983

claims against Duncan and Bernouy in their individual capacities. Johnson contends in

his pro se brief that his false imprisonment and malicious prosecution claims accrued on

April 17, 2015 when he was released from detention, see Manual, 

, such

that the instant action, filed on April 17, 2017, was timely filed within two years, which

he assumes is the allotted time. Appellant’s Informal Brief, at 4. We take a somewhat

different approach to the timeliness of Johnson’s complaint. The statute of limitations for

a civil rights action is determined by the applicable state’s statute of limitations for

personal injury actions. See Wilson v. Garcia, 

, 275 (1985). Courts should

apply the statute of limitations of the state where the cause of action arose. Wallace v.

Kato, 

, 387 (2007). See also Pearson v. Secretary Dep’t of Corrections, 

, 602 (3d Cir. 2015).4 Here, there are two candidates for consideration: New

Jersey and New York. The District Court appears to have concluded that New Jersey’s

two-year statute of limitations for personal injury claims should govern, see N.J. Stat.

Ann. § 2A:14-2(a); Cito v. Bridgewater Township Police Dep’t, 

, 25 (3d Cir.



3
 Johnson noted in his complaint that he has pursued a state tort claim against the
defendants in connection with his alleged unlawful detention. Complaint, at ¶ 14.
4
 To the extent that we applied a “forum state” rule in Kost v. Kozakiewicz, 

,
190 (3d Cir. 1993), we note that, in that case, the forum state and the state where the
harm occurred were the same: Pennsylvania.

                                               7
1989), and that the cause of action accrued on the day of the arrest, April 15, 2015, see

Bayer v. Township of Union, 

, 1129 (N.J. Super. Ct. 2010) (claim for false

arrest accrues on date of arrest). However, the arrest and detention, which are the source

of the harm to Johnson, occurred in New York. Therefore, an argument can be made that

Johnson’s § 1983 counts for false imprisonment and malicious prosecution accrued not in

New Jersey but in New York, in which case New York’s three-year statute of limitations

applies, see N.Y. C.P.L.R. § 214(5).

       With those principles in mind, we uphold the dismissal of the complaint against

Duncan in her individual capacity as time-barred. Even if we apply New York’s three

year statute of limitations, her contribution to the harm ended no later than November 15,

2013, when the warrant, which allegedly was based on her intentionally providing false

information to the court, issued. Any § 1983 action against her under New York’s statute

of limitation would have to have been filed by November 15, 2016. Although Count VI

may be read to state an ongoing claim of negligence against Duncan (and the other

defendants) for “not deleting the warrant out of their computer” system, a negligent

deprivation of rights is not actionable under § 1983 and the Fourteenth Amendment,

Daniels v. Williams, 

, 328 (1986). Accordingly, we uphold the sua sponte

dismissal of the § 1983 claims against Duncan in her individual capacity as time-barred

and the dismissal of Count VI, the negligence count, in its entirety.

       Defendant Bernouy is alleged to have verified the existence of the warrant on or

about April 15, 2015. If New York law applies, whether the § 1983 claim against him for

false imprisonment and malicious prosecution accrued on April 15, 2015 or April 17,

2015 need not be decided; if New York law applies, at a minimum, Johnson’s complaint
                                          8
was not due until April 15, 2018. Accordingly, we decline to uphold dismissal of the §

1983 claims against Bernouy in his individual capacity on timeliness grounds.

Nevertheless, dismissal was proper on the basis of qualified immunity. The doctrine of

qualified immunity protects a government official from a claim for damages when his

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known. Harlow v. Fitzgerald, 

, 818 (1982).

“The basic thrust of the qualified-immunity doctrine is to free officials from the concerns

of litigation, including ‘avoidance of disruptive discovery.’” 

(quoting Siegert v. Gilley, 

, 236 (1991) (Kennedy, J., concurring in

judgment)). Thus, qualified immunity shields officers who have “reasonable, but

mistaken beliefs” as to the law. Saucier v. Katz, 

, 205 (2001). See also

Anderson v. Creighton, 

, 641 (1987). Here, Bernouy merely conveyed to

federal officer Adetola the existence of a facially valid warrant for Johnson’s arrest.

Johnson did not allege that the warrant was not facially valid when Bernouy

communicated with Adetola, and, in fact, he specifically acknowledged that the warrant

was not quashed by a judicial officer until April 16, 2015. Bernouy’s reliance on a

facially valid warrant for Johnson’s arrest was objectively reasonable. 

uphold the dismissal of the § 1983 claims against him in his individual capacity. Cf.

Rogers v. Powell, 

, 456 (3d Cir. 1997) (concluding that state trooper who

was inaccurately told by another trooper that there was warrant for plaintiff's arrest was

qualifiedly immunized from suit).

       Last, we will modify the District Court’s order to state that dismissal of Count V,

the state tort claim for false imprisonment, is without prejudice. Because the District
                                               9
Court dismissed all claims over which it had original jurisdiction and did not specifically

address Count V, it was proper to decline to exercise supplemental jurisdiction over that

count. 28 U.S.C. § 1367(c)(3).

       For the foregoing reasons, we will affirm the order of the District Court sua sponte

dismissing Johnson’s complaint with prejudice as to all parties and all claims, except that

Count V, the state tort count, is dismissed without prejudice.




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