Petition for Writ of Certiorari — Joe Thorpe, Petitioner v. Township of Salisbury, Pennsylvania, et al.

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APPENDIX

I

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT, FILED APRIL 5,2023...

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APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA,

FILED MARCH 28,2022.................................

6a

APPENDIX C — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT,

FILED MAY 1,2023 ......................................

,22a

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APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT, FILED APRIL 5, 2023

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2448

JOE THORPE,

Appellant,

v.

TOWNSHIP OF SALISBURY; DEBRA J. BRINTON;

SANDY NICOLO; MICHAEL J. POCHRON;

DANIEL SELL

On Appeal from the United States District Court

for the Eastern District of Pennsylvania.

(D.C. Civil Action No. 5:21-cv-04261).

District Judge: Honorable Joseph F. Leeson, Jr.

April 4,2023, Submitted Pursuant

to Third Circuit L.A.R. 34.1(a);

April 5, 2023, Opinion Filed

Before: HARDIMAN, PORTER, and FREEMAN,

Circuit Judges.

2a

Appendix A

OPINION*

PER CURIAM

Joe Thorpe, an attorney proceeding pro se, appeals

from the District Court’s decision dismissing his civil

rights complaint. We will affirm that judgment.

I.

In 2021, Thorpe filed a pro se civil rights complaint

in the District Court against a township in Pennsylvania,

three of the township’s officials/employees, and a

magisterial district judge. Thorpe alleged that the

defendants had violated several federal criminal statutes

by filing and prosecuting “numerous code violation actions”

against him in retaliation for his filing an earlier civil

rights action against them. {See Dist. Ct. docket # 1, at 9.)

The defendants later moved the District Court to dismiss

the complaint. On March 28, 2022, the District Court

granted those motions, dismissed the claims against the

magisterial district judge with prejudice, and dismissed

the claims against the remaining defendants (hereinafter

“the Township Defendants”) without prejudice to Thorpe’s

ability to file, within 25 days, an amended complaint. But

Thorpe did not file an amended complaint; instead, he

chose to bring this appeal.1

* This disposition is not an opinion of the full Court and

pursuant to I.O.P. 5.7 does not constitute binding precedent.

1. Thorpe presented this appeal to the United States Court

of Appeals for the Federal Circuit. But that court concluded that

3a

Appendix A

II.

Absent exceptions that do not apply here, our appellate

jurisdiction is limited to reviewing “final” orders of the

district courts. See 28 U.S.C. § 1291. As a general matter,

a district court order that dismisses some (or all) of the

plaintiff’s claims without prejudice is not a final order.

See Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir.

1976) (per curiam). However, if the plaintiff “declares his

intention to stand on his complaint... the order become[s]

final and appealable.” Id. at 951-52. Here, Thorpe has

effectively elected to stand on his complaint because he

did not amend it within the time provided by the District

Court. See Batoff v. State Farm Ins. Co., 977 F.2d 848,

851 n.5 (3d Cir. 1992). Accordingly, the District Court’s

dismissal order constitutes a final order over which we

have jurisdiction. See id.; Borelli, 532 F.2d at 951-52.2

We review that order under a plenary standard. See In re

Schering Plough Corp. Intron/Temodar Consumer Class

Action, 678 F.3d 235, 243 (3d Cir. 2012).

it lacked jurisdiction over the appeal, and it transferred the appeal

to us pursuant to 28 U.S.C. § 1631.

2. Insofar as Weber v. McGrogan, 939 F.3d 232, 239-40

(3d Cir. 2019), questions Batoff’s jurisdictional analysis, Batoff

nevertheless remains good law. See 3d Cir. I.O.P. 9.1 (providing

that en banc consideration is required to overrule a prior panel’s

precedential opinion).

4a

Appendix A

III.

Thorpe’s appellate brief is essentially identical to

his brief in another appeal, see C.A. No. 22-2447,3 even

though the two appeals have not been consolidated, stem

from different District Court proceedings, and raise some

different issues.

Even when construed liberally, Thorpe’s brief does

little to coherently challenge the analysis set forth in

the District Court’s opinion accompanying its dismissal

order in this case. Assuming for the sake of argument

that Thorpe has done enough here to preserve such a

challenge, see Geness v. Cox, 902 F.3d 344, 355 (3d Cir.

2018) (“[I]t is well settled that a passing reference to an

issue will not suffice to bring that issue before this court”

(internal quotation marks omitted)), we conclude, for

substantially the reasons provided by the District Court,

that Thorpe’s claims were properly dismissed.4 To the

3. That appeal concerns a decision entered by the District

Court in the earlier civil rights action brought by Thorpe against

these and other defendants.

4. The District Court concluded that the claims against

the magisterial district judge were barred by the Eleventh

Amendment and the doctrine of judicial immunity, and that

granting Thorpe leave to amend those claims would be futile.

As for the claims against the Township Defendants, the District

Court concluded that they failed to state a claim because none

of the federal criminal statues identified by Thorpe created a

private cause of action, and that it would be futile to grant him

leave to amend those claims. Lastly, the District Court concluded

that, while the complaint included allegations that “have the

5a

Appendix A

extent that Thorpe now argues that the presiding District

Judge should have recused himself from this case, we find

no merit to this argument. See 28 U.S.C. § 455 (setting

forth standards of recusal); Securacomm Consulting,

Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000)

(“We have repeatedly stated that a party’s displeasure

with legal rulings does not form an adequate basis for

recusal

.”). Accordingly, we will affirm the District

Court’s judgment.

hallmark of a First Amendment retaliation claim,” (Dist. Ct. Op.

8), they were, as constituted, insufficient to state a viable claim.

Although the District Court granted Thorpe leave “to file an

amended complaint to allege additional facts in support of a First

Amendment retaliation claim,” (id. at 12), Thorpe elected not to

take advantage of that opportunity.

6a

APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF PENNSYLVANIA, FILED

MARCH 28, 2022

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

No. 5:21-cv-04261

JOE THORPE,

Plaintiff,

v.

TOWNSHIP OF SALISBURY,

PENNSYLVANIA, et al.,

Defendants.

March 28, 2022, Decided

March 28, 2022, Filed

OPINION

Township Defendants’1 Motion to Dismiss,

ECF No. 10 - Granted Defendant Pochron’s Motion to

Dismiss, ECF No. 12 - Granted

1. This Motion was filed on behalf of the Township of

Salisbury, Debra Brinton, Sandy Nicolo, and Daniel Sell

(hereinafter “Township Defendants”).

7a

Appendix B

Joseph F. Leeson, Jr.

United States District Judge

I.

March 28,2022

BACKGROUND

On May 4, 2021, in a separate civil action, Plaintiff

Joe Thorpe filed a civil rights complaint pursuant to

42 U.S.C. § 1983 against the Defendants in the abovecaptioned action, as well as other individuals. See Thorpe v.

Township ofSalisbury, Pennsylvania, etal, 5:21-cv-02102

(E.D. Pa. May 4, 2021).2 That case arose from allegedly

discriminatory activities in Thorpe’s neighborhood and

allegedly harassing behavior regarding cut trees and

damage to, or the condition of, Thorpe’s fence and pool.3

On September 27, 2021, Thorpe initiated the abovecaptioned action pursuant to 42 U.S.C. § 1983 alleging

that since filing his civil rights complaint, the Township

Defendants filed and prosecuted numerous code violations

against him in an effort to intimidate, harass, and retaliate

in violation of three criminal statutes: 18 U.S.C. §§ 1505,

2. For purposes of this Opinion, case number 5:21-cv-02102

is referred to as Thorpe’s “civil rights complaint.”

3. On March 22, 2022, after review of numerous pretrial

motions, this Court dismissed Pochron and another individual not

named in the above-captioned action with prejudice, dismissed

claims against other individuals without prejudice, and granted

the Township Defendants’ motion for a more definite statement.

Thorpe’s amended complaint and more definite statement are due

on or before April l5, 2022. See Thorpe, No. 5:21-cv-02102.

8a

Appendix B

1512,1513.4See Compl. Att. 3, ECF No. 1. Thorpe alleges

that the Honorable Michael J. Pochron, a Magisterial

District Judge in Lehigh County, held hearings on the

code violations and issued a bench warrant when Thorpe

failed to respond to a summons. See id. Thorpe alleges that

the sole purpose of all Defendants’ actions was to tamper

with the proceedings regarding his civil rights complaint

and to intimidate him. Thorpe names all Defendants

in their official capacities only. As relief, Thorpe seeks

attorneys fees, compensatory and punitive damages, an

investigation of the criminal activities, an injunction to

stop the harassment, and other injunctive relief.

Defendants have filed Motions to Dismiss, which

Thorpe opposes. See ECF Nos. 10-14. For the reasons

set forth below, the Motions are granted. The claims

against Pochron are dismissed with prejudice based on

immunity. The claims against the Township Defendants

are dismissed, in part, without prejudice.

II. LEGAL STANDARDS

A. Rule 12(b)(6) Motion to Dismiss - Review of

Applicable Law

Under Rule 12(b)(6), the court must “accept all factual

allegations as true [and] construe the complaint in the

light most favorable to the plaintiff.” Phillips v. Cnty. of

4. 18 U.S.C. § 1505 (Obstruction of proceedings before

departments, agencies, and committees); 18 U.S.C. § 1512

(Tampering with a witness, victim, or an informant); 18 U.S.C.

§ 1513 (Retaliating against a witness, victim, or an informant).

9a

Appendix B

Allegheny, 515 F.3d 224,233 (3d Cir. 2008) (quoting Pinker

v. Roche Holdings Ltd., 292 F.3d 361,374 n.7 (3d Cir. 2002))

(internal quotation marks omitted). See also Fed. R. Civ.

R 8(a) (requiring the complaint to contain “a short and

plain statement of the claim showing that the pleader is

entitled to relief”). Only if “the ‘[f]actual allegations .. .

raise a right to relief above the speculative level’” has the

plaintiff stated a plausible claim. Id. at 234 (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544,555,127 S. Ct. 1955,

167 L. Ed. 2d 929 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

However, “the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable

to legal conclusions.” Id. (explaining that determining

“whether a complaint states a plausible claim for relief

... [is] a context-specific task that requires the reviewing

court to draw on its judicial experience and common

sense”). Although the court must liberally construe pro se

filings,5 “a pro se complaint may not survive dismissal if

its factual allegations do not meet Iqbal’s basic plausibility

standard.” Beasley v. Howard, No. 20-1119,14 F.4th 226,

. 2021 U.S. App. LEXIS 28041, at *6 (3d Cir. Sep. 17,2021)

(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239,

245, 58 V.I. 691 (3d Cir. 2013)).

5. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285,

50 L. Ed. 2d 251 (1976) (holding that pro se pleadings are to be

“liberally construed”).

10a

Appendix B

“In deciding a Rule 12(b)(6) motion, a court must

consider only the complaint, exhibits attached to the

complaint, matters of public record, as well as undisputedly

authentic documents if the complainant’s claims are based

upon these documents.” Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010). Additionally, “a document integral to or

explicitly relied upon in the complaint may be considered.”

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1426 (3d Cir. 1997) (internal quotations omitted). The

defendant bears the burden of proving that a plaintiff has

failed to state a claim upon which relief can be granted.

See Hedges v. United States, 404 F.3d 744, 750 (3d Cir.

2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926

F.2d 1406,1409 (3d Cir. 1991)).

B. Section 1983 — Review of Applicable Law

Section 1983 provides a private cause of action for

violations of federal law by state officials. See 42 U.S.C.

§ 1983. “[S]ection 1983 does not create substantive rights;

rather it merely provides a remedy for deprivations

of rights established elsewhere in the Constitution or

federal laws.” Estate of Smith v. Marasco, 318 F.3d 497,

505-06 (3d Cir. 2003). “To state a claim under § 1983, a

plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must

show that the alleged deprivation was committed by a

person acting under color of state law.” West v. Atkins,

487 U.S. 42, 48, 108 S. Ct. 2250,101 L. Ed. 2d 40 (1988).

The initial question is therefore “whether the plaintiff

has alleged a deprivation of a constitutional right at

all.” Donahue v. Gavin, 280 F.3d 371, 378 (3d Cir. 2002)

11a

Appendix B

(internal quotations omitted). Next, the Court determines

whether the defendant is a “person acting under color of

state law.” See Leshko v. Servis, 423 F.3d 337,339 (3d Cir.

2005) (holding that “whether the defendant is a state actor

— depends on whether there is such a close nexus between

the State and the challenged action that seemingly private

behavior may be fairly treated as that of the State itself”

(internal quotations omitted)). “[NJeither a State nor its

officials acting in their official capacities are ‘persons’

under § 1983.” Will v. Michigan Dep’t of State Police,

491 U.S. 58, 65, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)

(explaining that “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”).

C. Immunity — Review of Applicable Law

“[T]he Eleventh Amendment prohibits federal courts

from entertaining suits by private parties against States

and their agencies.” Alabama v. Pugh, 438 U.S. 781, 782,

98 S. Ct. 3057, 57 L. Ed. 2d 1114 (1978). “Individual state

employees sued in their official capacity are [] entitled to

Eleventh Amendment immunity because ‘official-capacity

suits generally represent only another way of pleading

an action’ against the state.” Betts v. New Castle Youth

Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010) (quoting Hafer

v. Melo, 502 U.S. 21, 25,112 S. Ct. 358,116 L. Ed. 2d 301

(1991)). But see O’Callaghan v. X, 661F. App’x 179,182 (3d

Cir. 2016) (holding that “the Eleventh Amendment does

not generally bar prospective declaratory or injunctive

relief” if the plaintiff alleges sufficient facts that it is

“substantially likely that he would suffer future injury”).

12a

Appendix B

Although a state can waive immunity, “Pennsylvania has

not waived its immunity under Section 1983.” Bartlett

v. Kutztown Univ., No. 13-4331, 2015 U.S. Dist. LEXIS

21665, at *38 (E.D. Pa. Feb. 23, 2015).6

As to individual-capacity claims, 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, 443 F.3d 302, 303 (3d Cir. 2006) (citing Mireles

v. Waco, 502 U.S. 9, 12, 112 S. Ct. 286, 116 L. Ed. 2d 9

(1991)). Judicial immunity may only be overcome in two

circumstances: (1) “a judge is not immune from liability

for nonjudicial actions, i.e., actions not taken in the judge’s

judicial capacity;” and (2) “a judge is not immune for

actions, though judicial in nature, taken in the complete

absence of all jurisdiction.” Mireles, 502 U.S. at 11-12.

An act by a judge is “judicial” if the act “is a function

normally performed by a judge"; and to the expectations

of the parties, i.e., whether they dealt with the judge in

his judicial capacity.” Stump v. Sparkman, 435 U.S. 349,

362, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). “A judge will

not be deprived of immunity because the action he took

was in error, was done maliciously, or was in excess of his

authority.” Id. at 356.

6. See 1 Pa. C.S.A. § 2310 (The “Commonwealth, and its

officials and employees acting within the scope of their duties, shall

continue to enjoy sovereign immunity and official immunity and

remain immune from suit except as the General Assembly shall

specifically waive the immunity.”); 42 Pa. C.S. § 8522(b) (listing

the nine areas in which immunity has been waived).

13a

Appendix B

III.

DISCUSSION

A. Judge Pochron is immune from suit and is

dismissed with prejudice.

Pochron has filed a Motion to Dismiss arguing that

he is protected by Eleventh Amendment immunity and

judicial immunity, that he is not a “person” within the

meaning of § 1983, and that Thorpe fails to state a claim.

Pochron is only named in his official capacity and is

therefore not a “person” under § 1983. Additionally, the

claims against him are barred by Eleventh Amendment

immunity.7 He is also protected in his individual capacity

by absolute judicial immunity. Holding hearings and

issuing warrants for failure to respond to a summons,

which are the allegations against Pochron, are judicial

acts for which he is immune. See Figueroa v. Blackburn,

208 F.3d 435,444 (3d Cir. 2000) (reasoning that presiding

over cases, finding a party in contempt, and ordering a

party to jail are judicial acts, regardless of whether the

7. Although “the Eleventh Amendment does not generally

bar prospective declaratory or injunctive relief,” O’Callaghan

v. X, 661 F. App’x 179, 182 (3d Cir. 2016), § 1983 precludes

injunctive relief “in any action brought against a judicial officer

for an act or omission taken in such officer’s judicial capacity

... unless a declaratory decree was violated or declaratory relief

was unavailable,” 42 U.S.C. § 1983. Thorpe does not allege that

a declaratory decree was violated or that declaratory relief is

unavailable, nor does he seek injunctive relief to address any

actions of Pochron other than those taken in his judicial capacity.

SeeAzubuko v. Royal, 443 F.3d 302,303-04 (3d Cir. 2006) (holding

that the claim for injunctive relief against the judge was barred).

14a

Appendix B

judge’s determinations are right or wrong). Regardless

of Thorpe’s allegations that Pochron intended to harass,

intimidate, and retaliate against him, Pochron did not act

in the complete absence of jurisdiction. See Mireles, 502

U.S. at 12 (concluding that the judge, who ordered police

officers “to forcibly and with excessive force seize and

bring plaintiff into his courtroom” acted in his judicial

capacity and was immune from suit); Gochin v. Haaz,

No. 16-5359, 2017 U.S. Dist. LEXIS 199210, at *16-18

(E.D. Pa. May 10, 2017) (determining that even if the

allegations the defendant-judge accepted bribes to rule

in favor of a particular party were true, the judge was

entitled to immunity because the issuance of orders was

a core judicial function and not done in the clear absence

of all jurisdiction).

Consequently, Pochron is dismissed with prejudice as

leave to amend would be futile.8

8. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002) (holding that although a pro se plaintiff should

normally be given an opportunity to file a curative amendment,

leave to amend need not be granted where an “amendment would

be inequitable or futile”); Jones v. Del. Health, 709 F. App’x 163,

164 (3d Cir. 2018) (holding that because the plaintiff’s action was

barred by the Eleventh Amendment, any attempt to amend would

be futile); Brown v. Daniels, 290 F. App’x 467, 474-75 (3d Cir.

2008) (concluding that an amendment would be futile because the

defendants were entitled to absolute immunity).

15a

Appendix B

B. The claims against the Township Defendants

are dismissed without prejudice with leave

to file an amended complaint alleging a

retaliation claim only.

The Township Defendants move to dismiss the

Complaint for failure to state a claim, arguing that § 1983

does not create substantive rights and the statutes Thorpe

relies upon are criminal statutes that create no private

cause of action. Thorpe, who cites 18 U.S.C. §§ 1505,1512,

1513 in his Complaint, responds that 18 U.S.C. § 15149

gives him such rights.

Contrary to Thorpe’s argument, § 1514 does not create

a private right of action, nor does it authorize private

persons to apply for relief under the statute. See Blackmon

v. Escambia Cty. Sch. Bd., 568 F. App’x 848, 850 (11th

Cir. 2014) (concluding that 18 U.S.C. § 1514 “creates no

private right of action”); In re Walsh, 229 F. App’x 58, 61

(3d Cir. 2007) (determining that the plaintiff’s reliance

on 18 U.S.C. § 1514 for relief was misplaced). Rather,

§ 1514 allows a federal district court, “upon application of

the attorney for the Government, [to] issue a temporary

restraining order prohibiting harassment of a victim

or witness in a Federal criminal case ...” 18 U.S.C.

§ 1514(a) (emphasis added). Similarly, §§ 1505, 1512,

and 1513 of Title 18 United States Code do not provide

a private right of action. See Harlow v. Fitzgerald, 457

U.S. 800, 829, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)

9. 18 U.S.C. § 1514 (Civil action to restrain harassment of a

victim or witness)

16a

Appendix B

(holding that “18 U.S.C. § 1505, is a criminal statute ...

[it does not] expressly create[] a private right to sue for

damages”); Akil Rashidi Bey ex rel. Graves v. Richmond

Redevelopment & Hons. Auth., No. 3:13CV464-HEH, 2013

U.S. Dist. LEXIS 112835, at *13 (E.D. Va. Aug. 8, 2013)

(holding “18 U.S.C. §§ 1503, 1505, 1512, 1513, and 1514

are criminal statutes with no private cause of action”).

These federal criminal statutes must be prosecuted by the

federal government. See Mathis v. Phila. Elec. Co., No. 142234,2015 U.S. Dist. LEXIS 184328, at *11 (E.D. Pa. July

31,2015) (“Violations of federal criminal statutes that do

not provide a private right of action... must be prosecuted

by the federal government.”), aff’d 644 F. App’x 113,116

(3d Cir. 2016). Furthermore, “criminal claims fail to state

a cause of action under § 1983, as individual citizens do not

have a constitutional right to the prosecution of alleged

criminals.” Capogrosso v. Supreme Court of N.J., 588

F.3d 180,184 (3d Cir. 2009); Concepcion v. Resnik, 143 F.

App’x 422,425-26 (3d Cir. 2005) (finding that the plaintiff

lacked standing to pursue criminal charges against the

defendants).

All claims against the Township Defendants are

therefore dismissed. Leave to amend to state a claim

based on the criminal statutes would be futile and any

claim based on this theory of liability is dismissed with

prejudice. Nevertheless, this Court cannot conclude after

liberally construing the Complaint that Thorpe will be

unable to amend to state a cognizable claim under a

different theory of liability, namely: First Amendment

retaliation.

17a

Appendix B

The Complaint alleges that the Township Defendants

“retaliated” against Thorpe for filing the civil rights

complaint. These allegations, when liberally construed,

have the hallmark of a First Amendment retaliation

claim. To state a claim for retaliation under the First

Amendment, the plaintiff must show: (1) he was engaged

in constitutionally-protected conduct; (2) he suffered

an adverse action that was sufficient to deter a person

of ordinary firmness from exercising his constitutional

rights; and (3) a causal link between the exercise of his

constitutional rights and the adverse action taken against

him. See Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir.

2001).

Thorpe’s allegations satisfy the first element because

“the right of access to the courts is protected by the First

Amendment.” Bristow v. Clevenger, 29 F. App’x 813, 815

(3d Cir. 2002); Thomas v. Brinich, No. 1:12-CV-1539,

2014 U.S. Dist. LEXIS 31583, at *11 (M.D. Pa. Mar. 12,

2014) (determining that the plaintiffs allegation that he

was retaliated against for pursuing litigation against the

prison-defendants “implicates conduct protected by the

First Amendment sufficient to satisfy the first prong of

the Rauser test”).

The Complaint also includes allegations, while

insufficient, that relate to the second element of a

First Amendment retaliation claim. To satisfy the

second element, “the alleged retaliatory action must be

sufficiently adverse to deter a person of ordinary firmness

from exercising his First Amendment rights.” Bullock v.

Buck, 611F. App’x 744,747 (3d Cir. 2015) (internal citations

18a

Appendix B

and quotations omitted). Thorpe alleges that he suffered

an adverse action in the nature of code violations. However,

the mere fact that he had initiated a civil rights complaint

“does not .immunize [him] from penalties for violating

Borough Ordinances, nor does it automatically give rise

to a constitutional violation for any subsequent adverse

municipal actions against him.” Mayer v. Gottheiner, 382

F. Supp. 2d 635, 659-60 (D.N.J. 2005). See also Bolick

v. Ne. Indus. Servs. Corp., No. 4:14-CV-00409, 2015

U.S. Dist. LEXIS 165736, at *46 n.6 (M.D. Pa. Dec. 9,

2015) (same), adopted 2016 U.S. Dist. LEXIS 187084, at

*2 (M.D. Pa. Feb. 2, 2016). Thorpe fails to present any

factual allegations about the number, timing, and nature

of the violations to show the violations were “sufficiently”

adverse. Thorpe was not himself deterred as evidenced by

the instant action, nor has he alleged any facts to show that

a person of ordinary firmness would have been deterred

by the Township Defendants’ alleged conduct. Cf Banda

v. Corniel, 682 F. App’x 170,173-74 (3d Cir. 2017) (finding

that even though the plaintiff was not actually deterred

from continuing to file grievances (the protected activity),

actual deterrence is immaterial as the question is whether

a person of ordinary firmness would have been deterred)

with Monroe v. Phelps, 520 F. App’x 67, 71 (3d Cir. 2013)

(agreeing with the district court that the plaintiff, who

continued to file grievances (the protected activity), was

not subject to adverse actions of the type that would

deter a prisoner of ordinary firmness from exercising his

constitutional rights).

Finally, the Complaint includes conclusory allegations,

which are inadequate, that link the Township Defendants’

19a

Appendix B

actions to his civil rights complaint. Specifically, Thorpe

alleges that the Township Defendants’ actions occurred

on “[v]arious dates beginning after May 4, 2021 when

Plaintiff filed a Civil Rights complaint against Defendants”

and were done “in an effort to... retaliate against [him].”

See Compl. 4 and Att. 3. Without details as to when the code

violations were filed or any other evidence linking them to

the civil rights complaint; however, Thorpe has failed to

show a causal connection between the two. See Thomas

v. Vuksta, 481 F. App’x 33, 34 (3d Cir. 2012) (finding that

the plaintiff failed to present sufficient allegations of

a causal connection between his previous lawsuits and

his ongoing treatment); Bolick, 2015 U.S. Dist. LEXIS

165736, at *46 n.6 (recommending dismissal of a retaliation

claim based on the defendant’s issuance of an ordinance

violation ticket because the plaintiff presented conclusory

allegations of retaliatory intent and finding that, given the

“sheer number of claims” the plaintiffs initiated against

the municipal defendants in recent years, “it would be

impractical to assume a retaliatory motive for any adverse

municipal actions that happen to fall in close proximity

to the [plaintiffs’] latest filing”), adopted 2016 U.S. Dist.

LEXIS 187084, at *2 (dismissing the complaint).

Accordingly, this Court finds that after liberally

construing the Complaint, Thorpe has attempted to

state a First Amendment retaliation claim. Because

the allegations are insufficient, the claim is dismissed.

Dismissal of the First Amendment retaliation claim is

without prejudice because given the lack of detailed factual

allegations, this Court is unable to conclude that leave to

amend would be futile.

20a

Appendix B

C.

Thorpe is given leave to file an amended

complaint as to a First Amendment retaliation

claim, only.

As discussed herein, Thorpe may not base a § 1983

complaint on the alleged violation of criminal statutes. To

the extent he intends to pursue a retaliation claim under

the First Amendment, however, Thorpe is given leave to

file an amended complaint.

Thorpe is advised that his “amended complaint must

be complete in all respects.” Young v. Keohane, 809 F.

Supp. 1185,1198 (M.D. Pa. 1992). It must be a new pleading

which stands by itself without reference to the original

complaint. Id. The amended complaint must include

specific factual allegations as to each of the Township

Defendants and each of the elements of a retaliation

claim.10 It “may not contain conclusory allegations^ r]

10. Thorpe is also advised that to bring a claim against the

Township, he must identify a custom or policy that caused the

deprivation of his rights or show that the individual Defendants

were policymakers. See Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (A “local

government may not be sued under § 1983 for an injury inflicted

solely by its employees or agents. Instead, it is when execution of

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

or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government as an entity

is responsible under § 1983.”); Pembaur v. City of Cincinnati, 475

U.S. 469,483,106 S. Ct. 1292,89 L. Ed. 2d 452 (1986) (holding that

“municipal liability under § 1983 attaches where — and only where

— a deliberate choice to follow a course of action is made from

among various alternatives by the official or officials responsible

21a

Appendix B

ather, it must establish the existence of specific actions

by the defendants which have resulted in constitutional

deprivations.” Id. (citing Rizzo v. Goode, 423 U.S. 362,

96 S. Ct. 598, 46 L. Ed. 2d 561 (1976)). “The amended

complaint must be ‘simple, concise, and direct’ as required

by the Federal Rules of Civil Procedure.” Id. (citing Fed.

R. Civ. P. 8(e)(1)).

IV. CONCLUSION

Thorpe’s claims against Pochron are dismissed with

prejudice because he is immune from suit. The claims

against the Township Defendants are also dismissed,

but partially without prejudice. Criminal statutes cannot

form the basis of a § 1983 claim and all claims based on

this theory aPe dismissed with prejudice because an

amendment would be futile. Thorpe’s allegations, when

liberally construed, also present a First Amendment

retaliation claim. The allegations as pled are insufficient,

but Thorpe is granted leave to file an amended complaint

to allege additional facts in support of a First Amendment

retaliation claim.

A separate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson. Jr.

JOSEPH F. LEESON, JR.

United States District Judge

for establishing final policy with respect to the subject matter in

question.”).

22a

APPENDIX C — DENIAL OF REHEARING OF

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT, FILED MAY 1, 2023

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2448

JOE THORPE,

Appellant,

v.

TOWNSHIP OF SALISBURY; DEBRA J. BRINTON;

SANDY NICOLO; MICHAEL J. POCHRON;

DANIEL SELL

(D.C. Civil Action No. 5:21-cv-04261)

Present: CHAGARES, Chief Judge, JORDAN,

HARDIMAN, GREENAWAY, JR., SHWARTZ,

KRAUSE, RESTREPO, BIBAS, PORTER, MATEY,

PHIPPS, FREEMAN, MONTGOMERY-REEVES and

CHUNG, Circuit Judges

The petition for rehearing filed by appellant in the

above-entitled case having been submitted to the judges

who participated in the decision of this Court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the judges

23a

Appendix C

of the circuit in regular service not having voted for

rehearing, the petition for rehearing by the the Court en

banc, is denied.

BY THE COURT,

s/ David J. Porter

Circuit Judge

Date: May 1, 2023