NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-2700
                                       ___________

                                JOHN C. BERKERY, SR.,
                                              Appellant

                                             v.

                             MELVIN ROSS GUDKNECHT

                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-17-cv-05574)
                      District Judge: Honorable Gerald J. Pappert
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 14, 2019

            Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges

                             (Opinion filed: March 26, 2019)
                                     ___________

                                        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

       Pro se appellant John Berkery appeals the District Court’s order dismissing his com-

plaint. For the reasons detailed below, we will affirm the District Court’s judgment.

       Berkery filed a complaint against Melvin Gudknecht, alleging that Gudknecht de-

famed him in his autobiography. Gudknecht published a book entitled Working on the

Edge, which recounted his career working for the United States Organized Crime Strike

Force. The book contained a passage in which Gudknecht said that Berkery was a member

of the K&A Gang and had close ties with various other criminal organizations. In his

federal complaint, Berkery claimed that all of these assertions were false.

       The District Court dismissed the complaint without prejudice under 28 U.S.C.

§ 1915(e)(2). The Court noted that in two previous (unsuccessful) defamation actions chal-

lenging similar publications, the Appellate Division of the New Jersey Superior Court had

concluded that Berkery was a limited-purpose public figure with respect to his criminal

past. Relying on the doctrine of issue preclusion, the District Court concluded that Berkery

was therefore a limited-purpose public figure for purposes of this action. Thus, the Court

ruled, Berkery was required to plead that Gudknecht had acted with actual malice. In his

complaint, Berkery claimed that he did not need to plead actual malice; after rejecting that

legal argument, the Court dismissed the complaint without prejudice to Berkery’s re-filing

with additional factual allegations. The Court set a deadline of August 23, 2018, for Berk-

ery to re-file. Instead of filing an amended complaint, Berkery filed a notice of appeal.

       Berkery has elected to stand on his complaint as drafted, and we thus have jurisdic-

tion under 28 U.S.C. § 1291. See Borelli v. City of Reading, 

, 951-52 (3d

                                             2
Cir. 1976) (per curiam). Section 1915(e)(2) provides that a district court “shall dismiss the

case at any time if the court determines that” the case “fails to state a claim on which relief

may be granted.” 28 U.S.C. § 1915(e)(2). We review an order dismissing a complaint

pursuant to § 1915 for failure to state a claim under the same de novo standard of review

that we use to review an order dismissing a complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). See generally Allah v. Seiverling, 

, 223 (3d Cir. 2000).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, ac-

cepted as true, 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)).

       We agree with the District Court’s disposition of this case. As the District Court

explained, the Appellate Division previously ruled that Berkery is a limited-purpose public

figure with respect to his criminal background. See Berkery v. Kinney, 

,

1014-15 (N.J. Super. Ct. App. Div. 2007). “When a prior case has been adjudicated in a

state court, federal courts are required by 28 U.S.C. § 1738 to give full faith and credit to

the state judgment”; when doing so, federal courts “apply the same preclusion rules as

would the courts of that state.” Edmundson v. Borough of Kennett Square, 

,

189 (3d Cir. 1993). Thus, New Jersey’s principles of issue preclusion control. See Del.

River Port Auth. v. Fraternal Order of Police, 

, 573 (3d Cir. 2002). Under

New Jersey law, issue preclusion bars relitigation if (1) the issue is identical; (2) the issue

was actually litigated in a prior proceeding; (3) the prior court issued a final judgment on

the merits; (4) the determination of the issue was essential to the prior judgment; and (5)



                                              3
the party against whom issue preclusion is asserted was a party or in privity with a party to

the earlier proceeding. 

those requirements is satisfied here. The Appellate Division confronted the

same issue we face here—whether Berkery, by virtue of his criminal background, qualifies

as a limited-purpose public figure—and, after analyzing the issue in depth, concluded that

he did. See 

. That determination, which is now final, was

fundamental to the Appellate Division’s decision: the Court ruled that, as a limited-purpose

public figure, Berkery was required to show that the defendants had acted with actual mal-

ice, and that the defendants were entitled to summary judgment because he had failed to

do so. See 

Indeed, in a subsequent case, the Appellate Division recognized

the preclusive effect of its ruling that Berkery is a limited-purpose public figure, explaining

that the Court had “conclusively settled this issue.” Berkery v. Estate of Stuart, 

, 1206 (N.J. Super. Ct. App. Div. 2010).

       Accordingly, we agree with the District Court that principles of issue preclusion

dictate that Berkery be treated as a limited-purpose public figure in this case. This ruling

is, in effect, fatal to his action. When a limited-purpose public figure sues for defamation,

he must show that the statements were made with “actual malice.” Marcone v. Penthouse

Int’l Magazine For Men, 

, 1087 (3d Cir. 1985) (citing N.Y. Times v. Sulli-

van, 

, 279-80 (1964)); see also Biro v. Conde Nast, 

, 545-46 (2d

Cir. 2015). Actual malice is present when a statement is made “with knowledge that it was

false or with reckless disregard of whether it was false or not.” 

.



                                              4
As the District Court noted, Berkery did not attempt to plead actual malice, stating affirm-

atively that “actual malice need not be shown.” Compl. ¶ 17. Thus, the District Court did

not err in dismissing the complaint. Moreover, while the District Court provided Berkery

with an opportunity to amend his complaint to address this deficiency, he declined to do

so.

       Accordingly, we will affirm the District Court’s judgment.




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