BLD-177 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1269
___________
VITO A. PELINO,
Appellant
v.
JUDGE KATHRYN HENS-GRECO; NANCY
AQUINO, (CYF Director); RAMONA TROY, (Supervisor);
RAETONE MCKENZIE, (Caseworker)
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-16-cv-01140)
District Judge: Honorable Joy Flowers Conti
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 30, 2017
Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: May 15, 2017)
_________
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.
Victor A. Pelino appeals from the order of the District Court dismissing his
complaint. We will affirm.
I.
Pelino is a Pennsylvania state prisoner serving a sentence of life imprisonment for
first-degree murder. Upon Pelino’s arrest for murder in 2011, a state family court judge
issued an order barring Pelino from contacting his two minor sons. Later that year, the
Allegheny County Office of Children, Youth and Families (“CYF”) filed a petition to
terminate Pelino’s parental rights. The family court held a hearing and granted that
petition on October 26, 2011. Pelino unsuccessfully appealed in state court.
In 2016, Pelino filed pro se the federal complaint at issue here. He named as
defendants the state court judge and three CYF employees, and he asserted claims under
42 U.S.C. § 1983 that the defendants violated his constitutional rights. Among other
things, Pelino claimed that the judge made misrepresentations on the record, that CYF’s
petition contained misrepresentations as well, and that one of the CYF employees lied
under oath at the hearing. Pelino sought both monetary damages and an order vacating
the termination of his parental rights and granting him custody of his sons. 1
All defendants filed motions to dismiss Pelino’s complaint on various grounds
under Fed. R. Civ. P. 12(b)(6). The District Court granted those motions and dismissed
Pelino’s complaint with prejudice. The District Court concluded that, to the extent that
1
After Pelino filed his complaint, he filed a “brief” in support of it. The District Court
considered the assertions contained in his brief, and we have considered them as well.
2
Pelino directly challenged the order terminating his parental rights, his complaint was
barred by the Rooker-Feldman doctrine. See Great W. Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 166-67 (3d Cir. 2010). The District Court also concluded
that Pelino’s remaining claims against the state-court judge were barred by the Eleventh
Amendment to the extent that he sued her in her official capacity, see Capogrosso v. S.
Ct. of N.J., 588 F.3d 180, 185 (3d Cir. 2009) (per curiam), and were barred by judicial
immunity to the extent that he sued her in her individual capacity, see id. at 184.
As for Pelino’s claims against the CYF defendants, the District Court concluded
that they were barred by the two-year statute of limitations that applies to § 1983 claims
arising in Pennsylvania. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). The
District Court also concluded that those claims were barred by absolute immunity for
CYF’s petitioning activity, see Ernst v. Child & Youth Servs. of Chester Cty., 108 F.3d
486, 493 (3d Cir. 1997), and that the testifying CYF employee was entitled to witness
immunity as well, see Briscoe v. LaHue, 460 U.S. 325, 335-36 (1983). Finally, the
District Court concluded than any amendment of Pelino’s complaint would be futile.
Pelino appeals pro se. 2
II.
We will affirm for the reasons explained by the District Court. Pelino raises
2
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s dismissal under Rule 12(b)(6) and will affirm if the complaint fails to
state a claim for relief that is plausible on its face. See Capogrosso, 588 F.3d at 185.
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several arguments on appeal, but most them already are answered by the District Court’s
analysis and do not require discussion. We nevertheless briefly address four
points.
First, Pelino argues that the District Court overlooked his allegations of fraud and
failed to mention them anywhere in its opinion. The District Court was well aware of
those allegations, however, and it specifically referenced them. (ECF No. 22 at 2-3.)
Second, Pelino argues that his allegations of fraud negate all grounds for
dismissal, including the statute of limitations and immunity. These arguments lack merit.
Pelino argues that 42 Pa. Cons. Stat. § 5504(b) contains an exception to the statute of
limitations for all claims of fraud. That provision, however, merely authorizes courts to
extend certain deadlines in cases of fraudulent concealment. See Mariner Chestnut
Partners, L.P. v. Lenfest, 152 A.3d 265, 280 n.9, 284 (Pa. Super. Ct. 2016). Pelino does
not argue that defendants concealed their alleged wrongdoing from him and that he could
not reasonably have discovered it within two years. Nor has Pelino raised any other
potential ground for tolling.
As for immunity, Pelino argues that defendants were not entitled to qualified
immunity because (according to him) they knowingly violated the law. The doctrines of
immunity that the District Court properly applied, however, provide for absolute
immunity, not qualified immunity. See Capogrosso, 588 F.3d at 184 (judicial immunity);
Ernst, 108 F.3d at 495 (CYF petitioning immunity); Briscoe, 460 U.S. at 335 (witness
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immunity). Thus, they apply even though Pelino alleges that defendants acted
intentionally and maliciously. See, e.g., Capogrosso, 588 F.3d at 184.
Third, Pelino argues that the Rooker-Feldman doctrine does not apply because he
did not complain of any injuries caused by a state court judgment. See Great W. Mining
& Mineral Co., 615 F.3d at 166. That is true to the extent that he complained merely of
fraud during the hearing that led to the state court’s order terminating his parental rights.
See id. at 171-72. The District Court did not conclude otherwise and instead properly
concluded that Pelino’s claims in that regard fail for the other reasons discussed above.
In addition to his claims of fraud during the hearing, however, Pelino also expressly
requested that the District Court vacate the order terminating his parental rights and
award him custody of his sons. As the District Court properly concluded, his complaint
was barred by the Rooker-Feldman doctrine to the limited extent that he was seeking
federal review of the state court’s order. See id. at 166-67.
Finally, Pelino argues that the District Court displayed bias by relying on case law
that the defendants did not cite. The District Court did not display any actual or apparent
bias in discharging its obligation to apply the law.
III.
For these reasons, we will affirm the judgment of the District Court.
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