BLD-249 NOT PRECEDENTIAL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

(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

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.,

, 537 n.1 (3d Cir. 2014); Anspach ex rel. Anspach v. City of Phila. Dep’t of Pub. Health,

, 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

. We exercise plenary review

over the District Court’s order dismissing the complaint, see Allah v. Seiverling,

(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.,

(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,

(2009). We

3 construe Burley’s pro se complaint liberally, see Erickson v. Pardus,

(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,

(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,

(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

(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,

; see also Bogan v. Scott-Harris,

(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.,

(3d Cir. 1998) (holding legislative immunity applied to claims for damages against senators in their individual capacities). 3 See Hutchinson v. Proxmire,

(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,

(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,

(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,

, 619 (3d Cir. 1989) (citing Paul v. Davis,

(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,

(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

(c)(3) when it dismisses all claims over which it has original jurisdiction.” Doe v.

Mercy Cath. Med. Ctr.,

(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

(a);

Johnson v. SmithKline Beecham Corp.,

(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.,

(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