BLD-166 NOT PRECEDENTIAL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

(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

(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

and exercise

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

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

state a claim pursuant to

(e)(2)(B)(ii) is the same as that for dismissing a

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

To survive

dismissal, “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,

(2009)

(quoting Bell Atlantic Corp. v. Twombly,

(2007)). This Court affirms

a district court’s dismissal for failure to state a claim “only if, accepting all factual 2 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,

(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,

(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.,

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

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

officers.” Brown v. Muhlenberg Twp.,

(3d Cir. 2001) (quoting

Monell,

). 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.

(quoting Adickes v. S.H.

Kress & Co.,

(1970)). Furthermore, a municipality cannot be

constitutionally liable under the doctrine of respondeat superior. See City of Canton v. 3 Harris,

(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,

(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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