NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-2310 ___________

PAMELA MCDEAVITT; LEO L. MCDEAVITT, JR., Appellants

v.

THE HONORABLE MICHAEL MCCARTHY; THE HONORABLE JUDITH FRIEDMAN; FIFTH JUDICIAL DISTRICT; BENEFICIAL CONSUMER DISCOUNT CO, DBA Beneficial Mortgage Co of Pennsylvania; ANDREW K. STUTZMAN; MICHELLE H. BADOLATO; IAN LONG; STRADLEY, RONON, STEVENS AND YOUNG; KIM HONG; TONY, (Motions Clerk) ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-18-cv-00249) District Judge: Honorable David S. Cercone ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) March 26, 2019 Before: GREENAWAY, Jr., RESTREPO, and FUENTES, Circuit Judges

(Opinion filed: April 9, 2019) ___________

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. Pamela McDeavitt and Leo L. McDeavitt, Jr., appeal the District Court’s sua

sponte dismissal of their case pursuant to

(e)(2)(B)(i)–(iii) because the

complaint was frivolous, failed to state a claim, and sought monetary relief against

defendants who are immune from such relief. For the following reasons, we will affirm

the District Court’s judgment.

The McDeavitts brought suit against Judge McCarthy, Judge Friedman, and Tony

(a Motions Clerk); the Fifth Judicial District; Stradley, Ronon, Stevens, and Young (a law

firm); Andrew Strutzman, Michelle Badolato, Ian Long, and Kim Hong (attorney

defendants); and Beneficial Mortgage Company of Pennsylvania (Beneficial). The

McDeavitts maintained they had been denied due process and equal access to the court

system in a foreclosure case which was taking place in the Court of Common Pleas of

Allegheny County. The McDeavitts alleged violations of

and

1985(3), the Fourteenth Amendment’s Due Process clause, and state-law claims for

fraud, theft, and conversion.

After the District Court granted the McDeavitts’ motion to proceed in forma

pauperis (IFP), the case was referred to a Magistrate Judge, who drafted a Report and

Recommendation (R&R) advising that the case be dismissed. The Magistrate Judge

reasoned that the Fifth Judicial District, Judge McCarthy, Judge Friedman, and Tony the

Motions Clerk could not be sued due to immunity under the Eleventh Amendment.

Additionally, to the extent these parties were being sued in their individual capacities,

2 judicial immunity acted as a bar to suit against the judges and quasi-judicial immunity

barred a suit against the Motions Clerk.

As to the § 1983 claims against the attorney defendants, the law firm, and

Beneficial, the Magistrate Judge determined that none of these parties were state actors,

and thus § 1983 was inapplicable. With regard to § 1985(3), the Magistrate Judge found

that the McDeavitts had not alleged specific facts that would support a claim for

conspiracy. Finally, the Magistrate Judge recommended that the District Court decline to

exercise supplemental jurisdiction over the state law claims for fraud, theft, and

conversion. The District Court adopted the R&R and dismissed the complaint pursuant

to the IFP screening provisions of

(e)(2)(B)(i)–(iii). The McDeavitts

timely appealed.

We have jurisdiction pursuant to

. Our review of the District

Court’s sua sponte dismissal pursuant to

(e)(2)(B) is de novo. 1 See

Allah v. Seiverling,

(3d Cir. 2000). A District Court may dismiss a

complaint sua sponte on the immunity grounds of § 1915(e)(2)(B)(iii) when it is clear on

the face of the complaint that a party is immune from suit. See Walker v.

1 We understand the District Court’s frivolousness determination to be based on its conclusion that the McDeavitts’ claims rested on meritless legal theories, not on fanciful factual allegations. See Ball v. Famiglio,

, 462 n.18 (3d Cir. 2013) (noting “a district court may base its frivolousness determination either on [1] its conclusion that a claim is based on an indisputably meritless legal theory or [2] on a finding that the complaint’s factual allegations . . . are clearly baseless, and that we suggest deference only to the latter” (emphasis added) (internal quotations and citations omitted)), partially abrogated on other grounds by Coleman v. Tollefson,

(2015).

(7th Cir. 2002). When considering whether to dismiss a complaint for

failure to state a claim pursuant to § 1915(e)(2)(B)(ii), the District Court uses the same

standard it employs under Fed. R. Civ. P. 12(b)(6). See Allah,

. “[A]

complaint must contain sufficient factual allegations, taken as true, to ‘state a claim to

relief that is plausible on its face.’” Fleisher v. Standard Ins.,

(3d Cir.

2012) (quoting Bell Atl. Corp. v. Twombly,

(2007)). We accept all

factual allegations in the complaint as true and construe those facts in the light most

favorable to the plaintiff.

On appeal, the McDeavitts have failed to make any substantive arguments

challenging the District Court’s determinations. Instead, the McDeavitts argue the

frivolousness standard under § 1915 is “more lenient” than the Rule 12(b)(6) standard,

and further maintain that “[s]ince the IFP was granted, [that] means the Complaint was

not considered frivolous[.]” 2 Appellants’ Br. 2–3. The only argument the McDeavitts

advance to support that they have stated a claim is a single sentence asserting “[t]hey

alleged facts which must be viewed in the light most favorable to them and they certainly

plead enough facts to permit their claim to proceed.” Appellants’ Br. 3. The McDeavitts

do not present arguments contesting the R&R’s determination on the applicability of

Eleventh Amendment immunity or judicial immunity. They do not address the finding

2 We note that a District Court’s IFP grant does not mean that the court has also determined the underlying complaint is not frivolous; rather, “the general practice in this Circuit is to grant leave to proceed [IFP] based solely on a showing of indigence.” Gibbs 4 that the parties were not state actors for purposes of § 1983, nor do the point to any facts

supporting a conspiracy claim under § 1985(3). Finally, they do not mention their state

law claims.

Consequently, the McDeavitts have effectively waived any challenge to the

District Court’s rulings on these matters. 3 See Laborers’ Int’l Union of N. Am., AFL-

CIO v. Foster Wheeler Energy Corp.,

(3d Cir. 1994) (“An issue is

waived unless a party raises it in its opening brief, and for those purposes a passing

reference to an issue . . . will not suffice to bring that issue before this court.” (internal

quotation marks omitted)); see also Barna v. Bd. of Sch. Directors of Panther Valley Sch.

Dist.,

, 145–46 (3d Cir. 2017) (“[W]e have consistently refused to consider

ill-developed arguments or those not properly raised and discussed in the appellate

briefing.”).

Even if we declined to enforce this waiver, we would—for the reasons mentioned

above and thoroughly discussed in the R&R—find no error in the District Court’s

dismissal pursuant to § 1915(e)(2)(B)(i)–(iii). In addition, we are satisfied that any

amendment of the McDeavitts’ complaint would be futile. See Grayson v. Mayview

v. Ryan,

, 161 n.1 (3d Cir. 1998) (emphasis added). 3 While we are mindful of the McDeavitts’ pro se status, and although we construe pro se filings liberally, this policy has not prevented us from applying the waiver doctrine to pro se appeals. See, e.g., Emerson v. Thiel Coll.,

, 190 n.5 (3d Cir. 2002) (per curiam); Gambino v. Morris,

, 161 n.10 (3d Cir. 1998).

5 State Hosp.,

(3d Cir. 2002). For the foregoing reasons, we will affirm

the District Court’s judgment.

6