Filed: Aug. 23, 2021
Latest Update: Aug. 24, 2021
BLD-249 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-1956
___________
KEITH LAMONT BURLEY, JR.,
Appellant
v.
AARON BERNSTINE
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1:21-cv-00072)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 12, 2021
Before: AMBRO, SHWARTZ and PORTER, Circuit Judges
(Opinion filed: August 23, 2021
_________
OPINION *
_________
PER CURIAM
Keith Lamont Burley, Jr., a prisoner proceeding pro se and in forma pauperis,
appeals from the District Court’s order dismissing his complaint and denying his motions
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
for joinder and for appointment of counsel. For the reasons set forth below, we will
summarily affirm.
I.
In January 2021, Burley filed a civil rights complaint in the United States District
Court for the Middle District of Pennsylvania against Aaron Bernstine, a member of the
Pennsylvania House of Representatives, in both his individual and official capacities.
Burley alleged that, beginning in September 2019, Bernstine violated Burley’s federal
and state constitutional rights and various state law torts by sponsoring and promoting
House Bill 1855 and by making prejudicial statements about Burley in press conferences.
House Bill 1855 (later reintroduced as House Bill 146), known as Markie’s Law,
was named for an eight-year-old boy whom Burley was charged with murdering in July
2019 and would postpone parole considerations for inmates convicted of violent offenses
while incarcerated. 1 Burley alleged, inter alia, that the introduction and promotion of
Markie’s Law interfered with his impending criminal trial and that Bernstine’s statements
labeling Burley “the perpetrator” and “a monster,” among other things, in promoting the
bill were defamatory and resulted in reputational harm. Burley likened proceedings
within the House of Representatives to a trial in absentia that violated his right to a
presumption of innocence and alleged that he was denied equal protection of the law in
violation of 42 U.S.C. § 1985 because he is Muslim, black, and a parolee. He sought a
1
The District Court was permitted to take judicial notice of these facts pertaining to
Markie’s Law and Burley’s criminal proceedings. See Orabi v. Att’y Gen., 738 F.3d 535,
537 n.1 (3d Cir. 2014); Anspach ex rel. Anspach v. City of Phila. Dep’t of Pub. Health,
503 F.3d 256, 273 n.11 (3d Cir. 2007).
2
declaratory judgment that Bernstine violated his rights; an injunction requiring Bernstine
to issue a public apology and expunging and prohibiting the introduction, promotion, and
enactment of Markie’s Law; and fourteen million dollars in punitive damages. Burley
also sought appointment of counsel and moved to join Joshua Lamancusa, Lawrence
County District Attorney and Prison Board Member, alleging that he colluded with
Bernstine to defame Burley in promoting Markie’s Law and engaged in other violations
of Burley’s constitutional rights.
The case was referred to a Magistrate Judge, who screened the complaint under 28
U.S.C. § 1915A and recommended dismissing Burley’s federal claims with prejudice,
declining to exercise supplemental jurisdiction over the state law claims, and denying
Burley’s motion for appointment of counsel and motion for joinder. Over Burley’s
objections, the District Court adopted the recommendation in its entirety, and Burley
timely appealed. On appeal, he has also filed a motion for appointment of counsel, a
motion for leave to file a supplemental pleading, and a document in support of his appeal.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s order dismissing the complaint, see Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000), and review the District Court’s decision not to exercise
supplemental jurisdiction over Burley’s state law claims for abuse of discretion, see
Figueroa v. Buccaneer Hotel Inc.,
188 F.3d 172, 175 (3d Cir. 1999). To survive
dismissal, a complaint must set out “sufficient factual matter, accepted as true” to show
that its claims are facially plausible. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). We
3
construe Burley’s pro se complaint liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), and we may summarily affirm “on any basis supported by the
record” if the appeal fails to present a substantial question, Murray v. Bledsoe,
650 F.3d
246, 247 (3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
III.
The District Court correctly concluded that Bernstine is entitled to immunity for
Burley’s claims regarding the sponsorship and promotion of Markie’s Law because
activities related to “introducing, debating, [or] passing” legislation “are properly
characterized as legislative” acts for which legislators enjoy absolute immunity. Baraka
v. McGreevey, 481 F.3d 187, 196 (3d Cir. 2007). Moreover, this is “an appropriate case
for application of legislative immunity to a claim for prospective relief,” as Burley’s
requests for expungement of Markie’s Law and an injunction against its introduction,
promotion, and enactment “would seriously interfere with the role assigned exclusively to
the Legislature.” See
id. at 203 (citations and internal quotation marks omitted). 2
Regarding those claims for which Bernstine is not entitled to legislative
immunity—namely, those arising out of statements made in press conferences 3—we
2
Burley argues that Bernstine engaged in willful misconduct and thus is not entitled to
legislative immunity. “But a defendant’s intent and motive are immaterial to whether
certain acts are entitled to legislative immunity.” Baraka, 481 F.3d at 200; see also
Bogan v. Scott-Harris,
523 U.S. 44, 54-55 (1998). Burley’s argument that legislative
immunity does not apply to his claims against Bernstine in his individual capacity is also
unavailing. See Larsen v. Senate of Pa.,
152 F.3d 240, 252 (3d Cir. 1998) (holding
legislative immunity applied to claims for damages against senators in their individual
capacities).
3
See Hutchinson v. Proxmire, 443 U.S. 111, 132-33 (1979) (holding newsletters and
4
agree with the District Court that Burley failed to state a plausible claim for relief.
Specifically, Burley’s bare assertion that he was denied equal protection because he is
Muslim, black, and a parolee failed to state a claim under § 1985(3). See Lake v. Arnold,
112 F.3d 682, 685 (3d Cir. 1997) (describing elements required to allege a § 1985(3)
claim). The conclusory allegations in Burley’s motion for joinder that Bernstine and
Lamancusa colluded to make defamatory statements in the media and in promoting
Markie’s Law fared no better.
We also agree with the District Court that Burley’s allegations failed to satisfy the
“stigma-plus” standard for due process claims alleging injury to reputation. See Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). Namely, although Burley
arguably alleged the “stigma” element, he failed to plausibly allege that Bernstine’s
remarks were made “in the course of or [were] accompanied by a change or
extinguishment of a right or status guaranteed by state law or the Constitution.” See Clark
v. Twp. of Falls,
890 F.2d 611, 619 (3d Cir. 1989) (citing Paul v. Davis,
424 U.S. 693,
701-12 (1976)). Burley has suggested that Bernstine’s remarks tainted his criminal
proceedings and caused him to be recommitted to a state correctional institution as a
convicted parole violator. As the District Court noted, however, Burley was arrested and
charged with the offenses at issue several months before Bernstine allegedly began
press releases not entitled to protection under the Speech or Debate Clause); Youngblood
v. DeWeese,
352 F.3d 836, 839 (3d Cir. 2003) (“The scope of state legislators’ immunity
is ‘coterminous’ with the absolute immunity afforded to members of Congress under the
Speech or Debate Clause, Art. I, § 6, of the United States Constitution.” (citation
omitted)).
5
making the defamatory statements, and because Burley was still awaiting his criminal
trial, the contention that Bernstine’s statements tainted its fairness was speculative. 4
Further, the District Court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Burley’s state law claims after his federal claims were
dismissed. A court may decline to exercise supplemental jurisdiction “under 28 U.S.C. §
1367(c)(3) when it dismisses all claims over which it has original jurisdiction.” Doe v.
Mercy Cath. Med. Ctr., 850 F.3d 545, 567 (3d Cir. 2017). The record indicates that both
parties are Pennsylvania citizens, and thus the District Court lacked an independent basis
for subject matter jurisdiction over the state law claims. See 28 U.S.C. § 1332(a);
Johnson v. SmithKline Beecham Corp.,
724 F.3d 337, 346 (3d Cir. 2013).
Finally, considering the foregoing, the District Court did not abuse its discretion or
otherwise err in dismissing the complaint without leave to amend; as the District Court
explained, amendment would have been futile. See Grayson v. Mayview State Hosp.,
293 F.3d 103, 108 (3d Cir. 2002). 5
4
Burley has also suggested that the legislative proceedings related to Markie’s Law
satisfy the “plus” factor because they were, in effect, a criminal trial in absentia, and that
votes in favor of the legislation amounted to guilty verdicts against him. This is
implausible. We also note that insofar as Burley raised claims under the First, Fifth,
Sixth, and Thirteenth Amendments, the District Court did not err in dismissing those
claims for the reasons described in the Report and Recommendation.
5
Having dismissed Burley’s complaint, the District Court properly denied his remaining
outstanding motions as moot.
6
IV.
For substantially the same reasons as the District Court and because this appeal
does not present a substantial question, we will affirm the judgment of the District Court.
See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. 6
6
In light of our disposition, Burley’s motion for appointment of counsel and motion for
leave to file a supplemental pleading are denied. We have considered the arguments
raised in those motions and conclude they are without merit and therefore do not warrant
further discussion.
7
