NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2007
___________
EDWARD J. MIERZWA,
Appellant
v.
ARKADIUSZ M. DUDEK; DIANE GAFFNEY; JAMES GAFFNEY;
UNITED STATES OF AMERICA; JOHN DOES 1-100, Employee
of United States Department of Justice as an individual and
official and personal capacities; JANE DOES 1-100, Employee
of United States Department of Justice as an individual and
official and personal capacities
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-17-cv-02625)
District Judge: Honorable Madeline Cox Arleo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 1, 2018
Before: MCKEE, COWEN, and ROTH, Circuit Judges
(Opinion filed: November 29, 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.
Edward Mierzwa (Appellant) appeals the District Court’s order granting Appellee
Arkadiusz Dudek’s motion for judgment on the pleadings, Appellees James and Diane
Gaffney’s motion to dismiss, and Appellee United States’ motion to dismiss. Appellant
also appeals the Magistrate Judge’s orders terminating, as moot, his motion for
rescheduling and motion for change of venue. Dkt. #42, 53. For the following reasons,
we will affirm.
Writing primarily for the parties, who are familiar with the extensive record in this
case, we review only those facts that are especially pertinent to our analysis. Appellant
brought suit under 42 U.S.C. § 1983 for various alleged constitutional violations; he also
brought a claim under the Federal Tort Claims Act (FTCA). The events giving rise to the
claims against the Gaffneys stem from trials held in July 2006 and August 2009.
Appellant argued the Gaffneys made “an endless series of false statements” against him
in their criminal harassment claims and testimony at trial. Similarly, the events giving
rise to the claims against Police Officer Dudek were connected to the Gaffneys’ August
2009 criminal harassment lawsuit, in which Officer Dudek also allegedly testified falsely
against Appellant.
Against the United States, Appellant argued violations of section 1983 for failing
to investigate and intervene in the above-referenced court proceedings with the Gaffneys.
Appellant further claimed violations under the FTCA for alleged negligence and other
various violations committed by the United States and John and Jane Doe federal
employees.
2
We have jurisdiction to review the District Court’s order pursuant to 28 U.S.C.
§ 1291.1 We review the District Court’s grant of the motion to dismiss pursuant to Rule
12(b)(6) de novo. Newark Cab Ass’n v. City of Newark, 901 F.3d 146, 151 (3d Cir.
2018). “To survive a motion to dismiss, 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., 679 F.3d 116, 120 (3d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). We accept all factual allegations in the complaint as true and
construe those facts in the light most favorable to the plaintiff. Id. Likewise, we apply
the same standards when reviewing an order granting judgment on the pleadings pursuant
to Rule 12(c). Hanover Ins. Co. v. Urban Outfitters, Inc., 806 F.3d 761, 764 (3d Cir.
2015). “We may affirm a district court for any reason supported by the record.”
Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011).
As a threshold matter, we first note that pursuant to Rule 28 of the Federal Rules
of Appellate Procedure and Third Circuit Local Appellate Rule 28.1, “appellants are
required to set forth the issues raised on appeal and to present an argument in support of
1
“Generally, an order which dismisses a complaint without prejudice is neither final nor
appealable because the deficiency may be corrected by the plaintiff without affecting the
cause of action.” Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per
curiam). Here, we conclude that the District Court intended its April 6, 2018 order to be
final, despite the inclusion of a “without prejudice” modifier, as the Court subsequently
terminated Appellant’s motion for a scheduling conference as moot. See Dkt. #42. In
any event, even if the order was not a final order when issued, we believe it is now.
Appellant has elected to stand on his amended complaint because he immediately
appealed the order and did not attempt to amend or refile his complaint. See Borelli, 532
F.2d at 951-52; Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007) (holding a
dismissal order “without prejudice” was a final order because the plaintiff elected to
3
those issues in their opening brief.” Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993). “It is well settled that if an appellant fails to comply with these requirements on a
particular issue, the appellant normally has abandoned and waived that issue on appeal
and it need not be addressed by the court of appeals.” Id. Indeed, to be preserved, all
arguments must be supported specifically by “the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.” Fed. R. App. P.
28(a)(8)(A). Consequently, “we have consistently refused to consider ill-developed
arguments or those not properly raised and discussed in the appellate briefing.” Barna v.
Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 145–46 (3d Cir. 2017)
(listing cases). 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., 296 F.3d 184, 190 n.5 (3d Cir. 2002) (per curiam); Gambino v. Morris, 134
F.3d 156, 161 n.10 (3d Cir. 1998); see also Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the same rules that
apply to all other litigants”).
Here, Appellant’s informal brief does little to advance any argument in opposition
to the District Court’s holdings. Rather, Appellant takes issue with various “kangaroo
court antics” allegedly committed by the District Court with regard to the filings below,
going so far as to suggest a conspiracy among court personnel for purposes of defeating
his action. Appellant Br. 40-42. Furthermore, to the extent Appellant does touch on the
stand on her original complaint rather than amend or refile it).
4
relevant issues in his brief, he does so in a conclusory manner, without any citation to
authority or the record. While we are mindful of Appellant’s pro se status, we conclude
that he has abandoned and waived much with regard to this appeal, as we will note
below.
We first turn to Appellant’s section 1983 claims against the Gaffneys and Officer
Dudek. The District Court held that these claims were time-barred. Appellant presents
no argument challenging this; accordingly, he has waived any issue with the District
Court’s holding. See F.D.I.C. v. Deglau, 207 F.3d 153, 169 (3d Cir. 2000) (finding an
issue not raised in opening brief on appeal was waived and would not be addressed).
Turning to Appellant’s claims against the United States and the John and Jane Doe
federal employees, the District Court held that Appellant failed to comply with the
administrative and procedural requirements to properly bring a claim under the FTCA.
We agree. Federal courts cannot assume jurisdiction over FTCA claims until (1) the
plaintiff has initially presented the claim to the appropriate federal agency within two
years of the date the claim accrues; and (2) the agency has either denied the claim or has
failed to make a final disposition within six months of the plaintiff’s presentation of the
claim. 28 U.S.C. § 2675(a); 28 U.S.C. § 2401(b); see also White–Squire v. U.S. Postal
Serv., 592 F.3d 453, 457 n.3 (3d Cir. 2010).
Here, Appellant does not present much argument showing he has satisfied the
procedural requirements in order to bring a claim under the FTCA, other than to argue
generally that the necessity of the SF-95 Form with a sum certain for damages is
5
“insignificant” at this juncture, and that he satisfied the procedural requirements by way
of various letters in 2007 to the Department of Justice. We are inclined to view
Appellant’s conclusory arguments, without any citation to authority or the record, as
waiving the issue. See Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 821 n.10
(3d Cir. 2006) (noting that “passing and conclusory statements do not preserve an issue
for appeal”). Regardless, we conclude that even if Appellant had fulfilled the procedural
requirements via his 2007 letters, his claims would be time-barred: Appellant did not
initiate his lawsuit until April 18, 2017—well outside the two-year time period for
bringing suit. See White–Squire, 592 F.3d at 457 n.3.
Additionally, as noted by the District Court, Appellant’s section 1983 claims
against the United States fail, as neither the United States nor federal actors, such as
employees, can be sued under section 1983. See Accardi v. United States, 435 F.2d
1239, 1241 (3d Cir. 1970); Polsky v. United States, 844 F.3d 170, 173 (3d Cir. 2016). To
the extent Appellant attempted to sue John and Jane Doe federal employees under
Bivens,2 he has not challenged the District Court’s holding that he failed to articulate the
employees’ personal, affirmative involvement in the deprivation of a constitutionally
protected right. Accordingly, he has abandoned that claim. See Kost, 1 F.3d at 182.
Finally, we turn to the appeal of the Magistrate Judge’s April 17, 2018 order
terminating Appellant’s rescheduling motion and his May 15, 2018 order terminating
Appellant’s change of venue motion (Dkt. #42, 53). It is well established that a district
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
6
court may refer certain pretrial matters to a magistrate judge for disposition, and that any
appeal from the magistrate judge’s order is to the district court. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(a). “As a general rule, we do not consider on appeal
issues that were not raised before the district court in the absence of exceptional
circumstances.” Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 251 (3d Cir.
1998).
Here, Appellant did not appeal the Magistrate Judge’s April 17, 2018 order to the
District Court, and Appellant points to no exceptional circumstances with respect to this
order; accordingly, we decline to review it. See id. Moreover, the Magistrate Judge’s
May 15, 2018 order was entered after Appellant’s notice of appeal. Consequently,
Appellant should have not only appealed this to the District Court to avoid waiver, but he
was also required to file an amended notice of appeal to give us jurisdiction to review it.
See id.; Union Pac. R. Co. v. Greentree Transp. Trucking Co., 293 F.3d 120, 126 (3d Cir.
2002) (citing Fed. R. App. P. 4(a)(4)(B)(ii)). Appellant did neither; thus, we cannot
review it.
For all of the foregoing reasons, we will affirm the District Court’s judgment.3
(1971).
3
Appellant’s Motion for Participation in the Appellate Mediation Program Pursuant to
L.A.R. 33.0 is denied.
7