BLD-035 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-2429 ___________

ANTHONY DELBRIDGE, Appellant

v.

K. ANTHONY THOMAS; A.U.S.A. MARY E. TOSCANO ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil No. 2-18-cv-09707) District Judge: Honorable Jose L. Linares ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 November 15, 2018

Before: AMBRO, VANASKIE and KRAUSE, Circuit Judges

(Opinion filed: November 21, 2018) _________

OPINION* _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Anthony Delbridge, proceeding pro se, appeals an order of the United States

District Court for the District of New Jersey dismissing a complaint he brought pursuant

to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics,

(1971).

We will affirm the judgment of the District Court.

Delbridge was arrested on April 14, 2015 after a United States Probation Officer

filed a petition alleging that he had violated the conditions of his supervised release from

prison. The matter was stayed pending the resolution of charges in state court. Delbridge

was placed on home confinement but was later detained on new state court charges. The

Probation Officer asserted that Delbridge had violated his bail conditions. On April 2,

2018, after a hearing, a Magistrate Judge ordered Delbridge’s detention pending a final

hearing on the revocation of his supervised release.

On or about May 30, 2018, Delbridge filed a complaint against the Assistant

United States Attorney asserting that she made false statements at the April 2, 2018

hearing in order to detain him beyond the applicable sentence. He stated that he was

denied bail and is wrongfully imprisoned. He also sued the Federal Public Defender,

who he alleged failed to return his calls and provide transcripts that the Court had

requested. Delbridge sought money damages for violations of his Fifth and Fourteenth

Amendment rights.

The District Court screened the complaint pursuant to

(e)(2)(B).

Noting that Delbridge’s claim would in fact be for malicious prosecution because he was

being held with the institution of legal process, the District Court dismissed the claim 2 because his final violation hearing had not yet occurred and he could not make the

requisite showing that the proceedings had terminated in his favor. See Halsey v.

Pfeiffer,

(3d Cir. 2014). The District Court noted that, even if he

could show a favorable termination, the Assistant United States Attorney was likely

entitled to immunity from suit. The District Court dismissed Delbridge’s claim against

the Federal Public Defender on the grounds that he is immune from civil liability and not

a federal actor. This appeal followed.

We have jurisdiction pursuant to

. Our standard of review is

plenary. Allah v. Seiverling,

(3d Cir. 2000).1

Since the dismissal of the complaint, the District Judge presiding over the petition

for revocation of supervised release dismissed the petition because the April 2015 arrest

warrant was filed after Delbridge’s active term of supervised release had expired. The

District Judge ordered Delbridge’s immediate release.

To the extent the dismissal of the violation petition constitutes a favorable

termination in connection with Delbridge’s claim against the Assistant United States

Attorney, dismissal of the claim was still warranted based on her absolute immunity to

1 To the extent the Assistant United States Attorney suggests that we may lack jurisdiction because the complaint was dismissed without prejudice, jurisdiction is not wanting because Delbridge could not have amended the complaint and cured its deficiencies. See Borelli v. City of Reading,

(3d Cir. 1976) (per curiam). 3 suit. See Burns v. Reed,

(1991) (holding prosecutor was absolutely

immune for actions at probable cause hearing and recognizing immunity for false

statements in judicial proceedings). Delbridge’s claims against the Federal Public

Defender were also properly dismissed because he did not act under color of federal law

for purposes of Bivens. See Polk County v. Dodson,

(1981) (public

defender does not act under color of state law under

when performing a

lawyer’s traditional functions in a criminal proceeding).

Accordingly, because this appeal does not present a substantial question, we will

summarily affirm the judgment of the District Court.

4