Brian Davis v. Charles Samuels, Jr.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 18-1204
_____________

BRIAN A. DAVIS; FREDERICKA K. BECKFORD,
Appellants

v.

CHARLES E. SAMUELS, JR., Director, Federal Bureau of
Prisons; FEDERAL BUREAU OF PRISONS
ADMINISTRATOR, Bureau of Prisons Privatization
Management Branch; G. C. WIGEN, Former Warden,
Moshannon Valley Correctional Center;
S. M. KUTA, Current Warden, Moshannon Valley
Correctional Center; THE GEO GROUP, INC.;
DAVID O'NEAL, Northeast Regional Director,
Department of Homeland Security
_______________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 3-16-cv-00026)
District Judge: Hon. Kim R. Gibson
_______________
 Argued
March 24, 2020

Before: JORDAN, RESTREPO, and GREENBERG, Circuit
Judges.

(Opinion Filed: June 11, 2020)
_______________

Stephen A. Fogdall [ARGUED]
Schnader Harrison Segal & Lewis
1600 Market Street – Ste. 3600
Philadelphia, PA 19103
Counsel for Appellants

Scott W. Brady
Laura S. Irwin [ARGUED]
Thomas M. Pohl
Office of United States Attorney
700 Grant Street – Ste.4000
Pittsburgh, PA 15219
Counsel for Appellees, Charles E. Samuels, Jr.,
Administrator Federal Bureau of Prisons,
David O’Neal

Thomas A. Specht [ARGUED]
Marshall Dennehey Warner Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
Counsel for Appellees, George C. Wigen,
Sean M. Kuta, Geo Group Inc.

2
 OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

While confined at the Moshannon Valley Correctional
Center (“MVCC”), a private prison operated by The GEO
Group, Inc. under contract with the Federal Bureau of Prisons,
Brian Davis was denied permission to marry his fiancée,
Fredricka Beckford. The warden of MVCC at the time was
George C. Wigen (together with GEO Group, the “GEO
Defendants”), and he is the one who allegedly said no. In
response, Davis and Beckford (the “Appellants”) brought suit
against the GEO Defendants and two federal officials, David
O’Neal, the Northeast Regional Director for the Department of
Homeland Security, and someone identified only by the title
Federal Bureau of Prisons Administrator of the Bureau of
Prisons Privatization Management Branch (the “BOP
Administrator,” and, together with O’Neal, the “Federal
Defendants”). The Appellants assert various state and federal
law claims against the GEO Defendants and the Federal
Defendants, the gravamen of which is that the Appellants were
denied the right to marry because of unlawful discrimination.

On consideration of a motion to dismiss by the GEO
Defendants, a Magistrate Judge issued a Report and
Recommendation (the “R&R”) calling for the Appellants’
claims against the GEO Defendants to be dismissed for failure
to state a claim. The R&R also recommended, sua sponte, that
the Appellants’ claims against the Federal Defendants be
dismissed because those defendants had yet to receive service
of process. The District Court adopted the R&R in its entirety
and, without further analysis, dismissed the Appellants’

3
lawsuit. The Appellants now argue that none of their claims
were properly dismissed. We agree that certain claims against
the GEO Defendants were wrongly dismissed and so too were
the claims against the Federal Defendants. Accordingly, we
will affirm in part, vacate in part, and remand the matter to the
District Court for further proceedings.

I. BACKGROUND

A. Factual Background

While imprisoned at MVCC, Davis, a Jamaican
national, requested permission to marry non-inmate Beckford,
a U.S. citizen of Jamaican descent. According to the
Appellants, MVCC imposed various requirements on those
wishing to get married, above and beyond the requirements
specified in Federal Bureau of Prisons regulations. The
Appellants allege that, despite their having complied with all
applicable requirements, including those additional ones
imposed by MVCC, Wigen nevertheless denied their request
to get married.

MVCC almost exclusively houses foreign nationals
who have been ordered to be deported or are facing an
impending immigration proceeding. The Appellants allege
that the GEO Defendants and the Federal Defendants
conspired to ensure that no inmate confined at MVCC can get
married. The rationale behind the conspiracy, according to the
Appellants, is that the Federal Defendants did not want inmates
getting married because it could complicate, and perhaps stop,
removal and other immigration proceedings. The GEO
Defendants also allegedly benefit from the conspiracy because
married inmates may more easily transfer to other facilities,

4
while the GEO Group has a financial interest in preventing
those transfers and keeping MVCC’s population as high as
possible. The Appellants allege that, since the time the GEO
Group began operating MVCC, no inmate has ever been
allowed to marry while incarcerated there.

B. Procedural History

The Appellants filed their original complaint on
January 25, 2016, and it appears to have been refiled for some
reason on February 8. Two weeks later, they filed an Amended
Complaint, which is the operative pleading in this case. The
Amended Complaint sets forth eleven claims, all predicated on
the alleged unlawful deprivation of the Appellants’ right to
marry. For purposes of this appeal, the most significant claims
are the demand for money damages pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), the allegation that the defendants conspired
to deprive them of their civil rights in violation of 42 U.S.C.
§ 1985(3), and the assertion that the defendants failed to adhere
to the non-discrimination requirements of 42 U.S.C. §§ 1981,
1983, and 2000d. 1

It is unclear whether, after the filing of suit, any
summonses were issued. By early October 2016, none of the
defendants had been served, and the District Court ordered
Beckford to “take all necessary steps to serve Defendants in

1
Appellants’ other claims include breach of contract,
intentional infliction of emotional distress, and violation of the
U.S. Constitution, the Constitution of the Commonwealth of
Pennsylvania, and certain federal anti-discrimination
regulations. See infra n.12.

5
accordance with Rule 4 of the Federal Rules of Civil Procedure
on or before November 6, 2016.” (JA 18.) She did not comply,
and on January 5, 2017, the Magistrate Judge issued a report
and recommendation (an earlier one, not the R&R underlying
the District Court decision now at issue) urging that the case
be dismissed for failure to prosecute. The Appellants did not
file any objections to that recommendation and, on March 15,
2017, the District Court adopted it and dismissed the case.

Within a week of the Court’s dismissal order, Beckford
moved to reopen the case. That motion was granted on June
21, 2017. In allowing the case to proceed, the Court warned
that the “[Appellants’] failure to serve Defendants on or before
August 4, 2017, w[ould] result in renewed dismissal of this
case.” (JA 95.) On July 31, the Appellants notified the Court
that they had served all the defendants, and that O’Neal and the
BOP Administrator had been served by sending them process
at their work addresses via Federal Express and certified mail
and, respectively. Counsel for the GEO Defendants filed a
notice of appearance a week later, and, on August 31, the GEO
Defendants moved to dismiss the Amended Complaint.

Notwithstanding the lack of an appearance by or answer
from the Federal Defendants, the Appellants took no further
action to perfect service on them until November. On the first
of that month, an Assistant U.S. Attorney wrote the Appellants
a letter informing them that they had failed to comply with the
service requirements of Federal Rule of Civil Procedure 4(i).
Two weeks later, the Appellants asked the District Court Clerk
to issue additional summonses so that they could properly
serve the Federal Defendants. Specifically, they asked for and
received summonses directed at O’Neal and the BOP
Administrator, addressed to the U.S. Attorney’s Office for the

6
Western District of Pennsylvania and the Department of
Justice. On December 13, 2017, the Appellants notified the
Court that they had sent the additional summonses for the
Federal Defendants “via USPS” to the U.S. Attorney’s Office
and to the Department of Justice. (JA at 158.)

Two days later, the Magistrate Judge filed the R&R. As
earlier described, it recommended dismissal of the Appellants’
lawsuit in its entirety. In suggesting that claims against the
Federal Defendants be dismissed, the Magistrate Judge stated
that the Appellants had not employed “means of service …
authorized by Rule 4” when they used certified mail and
Federal Express to effectuate their July 2017 attempt at service.
(JA at 13.) The Magistrate Judge made no reference to the
Appellants’ subsequent efforts to effect service of process on
the Federal Defendants, including their filing just two days
earlier stating that they had mailed summonses for those
officials to the pertinent government offices.

The Appellants objected to the R&R, arguing in part
that the Magistrate Judge had failed to account for their
substantial compliance with Rule 4. They did not argue before
the District Court, nor do they argue now, that they fully
complied with the requirements of Rule 4. While the R&R and
the Appellants’ objections were pending, the Federal
Defendants, through the U.S. Attorney’s Office, moved to
extend the deadline to answer, plead, or otherwise respond to
the Amended Complaint. With respect to service on the BOP
Administrator, the motion invoked Rule 12(a)(2) and said that
“a response to the Amended Complaint is due on or before
January 29, 2018[,]” based on receipt of the Amended
Complaint and summons on November 29, 2017. (JA at 205.)
As to the propriety of service made on O’Neal, the motion

7
stated that counsel was “unaware whether service has been
accomplished in accordance with Rule 4(i)(3)[.]” (JA at 205.)
The Magistrate Judge granted the Federal Defendant’s motion
on January 29.

Despite that, the next day the District Court adopted the
R&R, dismissed all claims against the GEO Defendants on the
merits, dismissed the claims against the Federal Defendants for
failure to prosecute, and ordered the case to be closed. The
Court stated it had undertaken a “de novo review of the
complaint and documents in the case[,]” but offered no
independent analysis. (JA at 3.) The following day, the
Federal Defendants moved to reopen the case so that they could
file a motion to dismiss “in part, based on the fact that
[Appellants] appear to have … failed to accomplish timely
service – or service at all at least on the unnamed ‘BOP
Administrator.’” (JA at 211.) The District Court declined to
reopen the case, noting that the Appellants had already filed an
appeal.

II. DISCUSSION 2

A. Dismissal of the Bivens Claim

The Appellants first challenge the District Court’s
dismissal of their claim for damages pursuant to Bivens. “The

2
The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1343, and 1367. We have jurisdiction pursuant to 28
U.S.C. § 1291. “We review de novo a district court’s grant of
a motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6).” Foglia v. Renal Ventures
Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014). In

8
purpose of Bivens is to deter individual federal officers from
committing constitutional violations” by subjecting them to
personal liability. Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
70 (2001). The Appellants specifically accuse the defendants
of violating their constitutional right to marry. 3 Based on the
R&R, the District Court dismissed the Bivens claim against the
GEO Defendants because, the Court said, those defendants are
“private, not federal, actors.” (JA 12.) We are deeply skeptical
of that conclusion.

conducting such a review, we “take as true all the factual
allegations of the … Amended Complaint and the reasonable
inferences that can be drawn from them, but we disregard legal
conclusions and recitals of the elements of a cause of action,
supported by mere conclusory statements. To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its
face.” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d
Cir. 2010) (internal quotation marks and citations omitted). A
claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
(internal quotation marks and citation omitted). “[W]e may
affirm a judgment of a lower court for any reason supported by
the record ….” In re Ross, 858 F.3d 779, 786 (3d Cir. 2017).
3
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme
Court held that prison inmates enjoy a constitutional right to
marry, which can be restricted in favor of legitimate
penological interests. See id. at 95 (“The right to marry, like
many other rights, is subject to substantial restrictions as a
result of incarceration.”).

9
 “In the limited settings where Bivens does apply, the
implied cause of action is the federal analog to suits brought
against state officials under … 42 U.S.C. § 1983.” Ashcroft v.
Iqbal, 556 U.S. 662, 675–76 (2009) (internal quotation marks
and citation omitted). We have accordingly recognized that
Bivens claims, like § 1983 claims, may reach private parties
when they engage in the federal equivalent of “state action.”
Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3d Cir. 2001);
cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936–937 (1982)
(permitting suit under § 1983 against private corporations
exercising “state action”). The GEO Defendants operate
private prisons on behalf of the federal government, which,
among other responsibilities, entails overseeing and
controlling the daily lives of the prisoners. The performance
of that function certainly appears to be the exercise of a right
having its source in federal authority, by those who “could in
all fairness be regarded as … federal actor[s.]” Philip Morris
Inc., 250 F.3d at 801; see also Pollard v. The GEO Grp., Inc.,
629 F.3d 843, 857-58 (9th Cir. 2010) (concluding under the
“public function test” that “the GEO employees act under color
of federal law for purposes of Bivens liability”), rev’d on other
grounds sub nom. Minneci v. Pollard, 565 U.S. 118, 132
(2012). 4 Despite that, we will affirm the Court’s dismissal of
the Bivens claim because the Appellants are asking for an
unsupportable extension of Bivens liability.

4
The Supreme Court has not held that private prison
operators cannot be liable for damages under Bivens because
they are not “federal actors.” Both Minneci and turned on the
separate and distinct question of whether the plaintiffs in those
cases had alternative remedies to a Bivens claim available to
them.

10
 We engage in a two-step inquiry when deciding whether
to extend the reach of Bivens. First, we ask “whether the
request involves a claim that arises in a new context or involves
a new category of defendants.” Hernandez v. Mesa, 140 S. Ct.
735, 743 (2020) (internal quotation marks and citations
omitted). Second, if there is a claim that has arisen in a new
context, we “ask whether there are any special factors [that]
counse[l] hesitation about granting the extension.” Id.
(alterations in original) (internal quotation marks and citations
omitted). “[I]f we have reason to pause before applying Bivens
in a new context or to a new class of defendants[,]we reject the
request.” Id. Importantly, when conducting our Bivens
analysis, we must be mindful of the Supreme Court’s
admonitions that “expansion of Bivens is a disfavored judicial
activity,” that “it is doubtful” that the outcome of Bivens would
be the same if it were decided today, and that “for almost 40
years, [the Supreme Court] ha[s] consistently rebuffed requests
to add to the claims allowed under Bivens.” Id. at 472-73
(internal quotations marks and citations omitted).

Regarding the first step of the inquiry, the Appellants
correctly “assume[]” that their Bivens claim, premised as it is
on a violation of the right to marry, arises in a “new context.”
(Appellants’ Opening Br. at 27 n.11.) The Supreme Court has
never recognized, or been asked to recognize, a Bivens remedy
for infringement of the right to marry. Accordingly, we turn to
the inquiry’s second step.

When we do, it is evident that there are “special factors”
militating against extending Bivens to reach the Appellants’
claim, particularly since that claim arises in a prison setting.
Those factors include, but are not necessarily limited to,
Congress’s post-Bivens promulgation of the Prison Litigation

11
Reform Act of 1995 (“PLRA”) 5 and the potential availability
of alternative remedies to the Appellants, such as injunctive
relief, 6 or relief under the Religious Freedom Restoration Act
(“RFRA”). 7 Because “there are sound reasons to think

5
See Ziglar v. Abbasi, 137 S. Ct. 1843, 1865 (2017)
(noting with respect to the PLRA that Congress “had specific
occasion to consider the matter of prisoner abuse and to
consider the proper way to remedy those wrongs[,]” but
deliberately chose to “not provide for a standalone damages
remedy against federal jailers” and that “legislative action
suggesting that Congress does not want a damages remedy is
itself a factor counseling hesitation” against extending Bivens).
6
See Ziglar at 1862-63 (noting that the “damages or
nothing” considerations underlying Bivens liability are not
present in cases, such as this, where the Appellants “challenge
large-scale policy decisions concerning the conditions of
confinement imposed on hundreds of prisoners[,]” because
“detainees may seek injunctive relief[,]” and that the Supreme
Court also has “left open the question whether [detainees]
might be able to challenge their confinement conditions via a
petition for a writ of habeas corpus”).
7
See Ziglar at 1858 (“For if Congress has created any
alternative, existing process for protecting the [injured party’s]
interest that itself may amoun[t] to a convincing reason for the
Judicial Branch to refrain from providing a new and
freestanding remedy in damages.”) (alterations in original)
(internal quotation marks omitted); Mack v. Warden Loretto
FCI, 839 F.3d 286, 305 (3d Cir. 2016) (declining to extend
Bivens to Muslim inmate’s Free Exercise claim, alleging that
he was subjected to anti-Muslim harassment from two

12
Congress might doubt the efficacy or necessity of a damages
remedy” for interfering with an inmate’s right to marry, Ziglar
v. Abbasi, 137 S. Ct. 1843, 1848 (2017), no extension of Bivens
is warranted here, and we will affirm the District Court’s
dismissal of the Appellants’ Bivens claim.

B. Dismissal of the Conspiracy Claim Under 42
U.S.C. § 1985(3)

Although the GEO Defendants did not request it in their
motion to dismiss, the Magistrate Judge, sua sponte,
recommended dismissal of the Appellants’ discrimination
claim pursuant to 42 U.S.C. § 1985(3). “Section 1985(3)
permits an action to be brought by one injured by a conspiracy
formed for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws.” Farber v. City of Paterson, 440 F.3d 131, 134
(3d Cir. 2006) (internal quotation marks and citation omitted).
According to the R&R, where “one or more” of the alleged
conspirators “are private citizens,” a § 1985(3) claim cannot be
sustained unless the claim involves either the right to be free
from involuntary servitude or the right to interstate travel. (JA
11 n.2.)

correctional officers, since there was an alternative remedial
scheme available to inmate under the RFRA). The Appellants
evidently believe they have a viable RFRA claim against the
defendants and intended to seek leave on remand to further
amend their Amended Complaint to include such a claim.

13
 That conclusion, though, is flawed because the Supreme
Court’s jurisprudence regarding private conspiracies and the
rights that can be vindicated under § 1985(3) pertains only to
conspiracies that are purely private, that is, to conspiracies that
do not involve any government actor at all. See, e.g., Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 278 (1993)
(“[D]eprivation of [the federal right to abortion] cannot be the
object of a purely private conspiracy.”); United Bhd. of
Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott,
463 U.S. 825, 833-34 (1983) (holding no § 1985 conspiracy
claim against trades council, union and individual members for
alleged infringement of First Amendment rights); see also
Philip Morris Inc., 250 F.3d at 805 (alleging conspiracy among
private entities in and supporting the tobacco industry did not
state viable claim under § 1985(3)). Even assuming that the
GEO Defendants could rightly be regarded as private actors
and not as government agents, the Appellants say that those
defendants conspired with at least one of the Federal
Defendants to deprive them – and, in fact, all of MVCC’s
inmates – of the constitutional right to marry, not based on
legitimate penological interests but rather because of invidious
discrimination. We agree that the Appellants have not alleged
a purely private conspiracy, and, consequently, a basic premise
of the District Court’s decision on the availability of § 1985(3)
relief was erroneous. We will accordingly vacate the dismissal
of the Appellants’ § 1985(3) claim, while noting that we are
not opining on the merit of it. We are saying only that the
rationale given for the order of dismissal presently before us
was wrong.

We understand that the Appellants, now aided by
counsel, intend on remand to seek leave to further amend their
Amended Complaint. As that may be permitted and may affect

14
the contours of, and the allegations supporting, the Appellants’
§ 1985(3) claim, we will – with one limited exception – decline
to address here the parties’ additional arguments concerning
the viability of that claim. The exception is the Federal
Defendants’ contention that our decision in Bethea v. Reid, 445
F.2d 1163 (3d Cir. 1971), forecloses any § 1985(3) claim
against federal actors or those acting under color of federal law.

The Federal Defendants are correct that Bethea says
§ 1985(3) does not reach federal officers acting under color of
federal law. Id. at 1164 (noting that the district court’s
rejection of plaintiff’s § 1985 claim “was correct” because
defendants “were federal officers acting under color of federal
law”). But the opinion said so in a single sentence, and neither
of the cases cited in support of that statement, Jobson v. Henne,
355 F.2d 129 (2d Cir. 1966), and Norton v. McShane, 332 F.2d
855 (5th Cir. 1964), stand easily for that proposition. 8
Importantly, Bethea makes no reference to Griffin v.
Breckenridge, 403 U.S. 88 (1971), which the Supreme Court
decided a few weeks earlier. In Griffin, the Supreme Court

8
Jobson involved neither any claim under § 1985(3) nor
any claim against federal actors. Rather, it addressed only a
claim under § 1983 against state actors. Jobson, 355 F.2d at
131. And, although one of the claims at issue in Norton was
brought pursuant to § 1985(3), the federal character of the
defendants was irrelevant to the claim’s disposition. Instead,
the Fifth Circuit Court of Appeals affirmed the dismissal of
that claim because the plaintiffs had failed “to allege facts
amounting to intentional and purposeful discrimination to the
plaintiffs individually or as members of a class.” Norton, 332
F.2d at 863.

15
held that § 1985(3) can reach purely private conspiracies
because the statute’s failure to require the “deprivation to come
from the State…. can be viewed as an important indication of
congressional intent to speak in § 1985(3) of all deprivations
of ‘equal protection of the laws’ and ‘equal privileges and
immunities under the laws,’ whatever their source.” Griffin,
403 U.S. at 97 (emphasis added). A significant consensus
among our sister Courts of Appeals is that Griffin has rendered
untenable the argument that § 1985(3) is inapplicable to those
acting under color of federal law. 9

Since the decisions in Griffin and Bethea were rendered
in close succession, it is quite possible that the failure to
mention – let alone analyze the application of Griffin in Bethea
– was unintentional. Whatever the reason, however, that
failure to address significant and likely dispositive Supreme
Court precedent prompts us to conclude that Bethea does not
constitute binding precedent on the issue of whether a claim
under § 1985(3) can be brought against federal actors. See
United States v. Tann, 577 F.3d 533, 542 (3d Cir. 2009)
(declining to apply ostensibly binding precedent because the
opinion in question did not address pertinent Supreme Court

9
Iqbal v. Hasty, 490 F.3d 143, 176 (2d Cir. 2007), rev’d
on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662
(2009); Ogden v. United States, 758 F.2d 1168, 1175 n.3 (7th
Cir. 1985); Hobson v. Wilson, 737 F.2d 1, 19 (D.C. Cir. 1984),
overruled in part on other grounds by Leatherman v. Tarrant
Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.
163 (1993); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir.
1980); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926,
931 (10th Cir. 1975).

16
authority and was inconsistent with that authority). Indeed, not
only have we never cited Bethea for the principle that
§ 1985(3) is inapplicable to federal actors, we have suggested
precisely the opposite. See Wilson v. Rackmill, 878 F.2d 772,
775 (3d Cir. 1989) (reversing dismissal of complaint under 28
U.S.C. § 1915(d) because, in part, “appellant may have stated
a claim for conspiracy under § 1985” against various federal
probation and parole officials). Accordingly, we join many of
our sister Circuits in holding that § 1985(3) can redress
conspiracies to violate constitutional rights involving those
acting under color of federal law.

C. Dismissal on the Merits of Additional Claims

The District Court also dismissed on the merits the
Appellants’ claims brought pursuant to 42 U.S.C. §§ 1981,
1983 and 2000d. 10 There was no error in that.

Claims under Section 1983 require action taken under
color of state, not federal law. See Philip Morris Inc., 250 F.3d
at 800 (noting that Section 1983 “is addressed only to the state
and to those acting under color of state authority” and that “[i]t
is well established that liability under § 1983 will not attach for
actions taken under color of federal law.”) All of the

10
As relevant to the Appellants’ claims, Section 1981
prohibits discrimination in the making and enforcement of
contracts on the basis of race; Section 1983 prohibits state
actors from depriving any individual of their constitutional
rights; and Section 2000d prohibits discrimination by programs
or activities receiving federal financial assistance on the basis
of race, color, or national origin.

17
defendants here, however, are alleged to be federal actors or to
have acted under color of federal law, so the 1983 claim cannot
stand.

Nor can the Appellants’ Sections 1981 and 2000d
claims. Those require allegations of discrimination based on
color or race, or, in the case of § 2000d, national origin. 11 Even
accounting for the Appellants’ pro se status at the time they
filed the Amended Complaint, their pleading is devoid of
allegations plausibly stating a claim for discrimination based
on race, color, or national origin. According to the Amended
Complaint, all inmates housed at MVCC, irrespective of their
race, color, or national origin, have been wrongfully deprived
of the right to marry. It was proper, then, to dismiss those
claims.

11
See Estate of Oliva ex rel. McHugh v. New Jersey,
604 F.3d 788, 797 (3d Cir. 2010) (“Ordinarily, to establish a
basis for relief under section 1981 a plaintiff must show (1) that
he belongs to a racial minority; (2) an intent to discriminate on
the basis of race by the defendant; and (3) discrimination
concerning one or more of the activities enumerated in
§ 1981.”) (internal quotation marks and citation omitted);
Scelsa v. City Univ. of N.Y., 806 F. Supp. 1126, 1140 (S.D.N.Y.
1992) (“‘The two elements for establishing a cause of action
pursuant to [§ 2000d] are (1) that the entity involved is
engaging in racial or national origin discrimination and (2) the
entity involved is receiving federal financial aid.’”) (quoting
Jackson v. Conway, 476 F. Supp. 896, 903 (E.D.Mo. 1979),
aff’d 620 F.2d 680 (8th Cir. 1980)).

18
 In contrast, however, the District Court dismissed
several claims against the GEO Defendants that those
defendants did not move to dismiss and that neither the District
Court’s opinion nor the R&R on which it was based addressed
at all. 12 Consequently, we will vacate the District Court’s
dismissal of those claims, while affirming the dismissal of the
claims under 42 U.S.C. §§ 1981, 1983 and 2000d.

D. Dismissal of Claims for Failure to Prosecute 13

Finally, the District Court also dismissed the claims
against the Federal Defendants on the procedural ground that
the Appellants had failed to properly serve them with process
in accordance with Rule 4 of the Federal Rules of Civil
Procedure. That order of dismissal, based on the Magistrate

12
Those claims include ones brought pursuant to the
Equal Protection Clause of the U.S. Constitution; 45 C.F.R.
§ 3.6 (prohibiting discrimination in use of facilities that are “of
a public nature”); 28 C.F.R. §42.104 (prohibiting
discrimination in programs receiving federal financial
assistance); article I, section 26 (misidentified as Article I,
Section VI in the Amended Complaint) of the Constitution of
the Commonwealth of Pennsylvania (prohibiting the
Commonwealth from discriminating against any person for
exercising their civil rights); as well as claims under
Pennsylvania law for intentional infliction of emotional
distress and breach of contract.
13
We review dismissals for failure to prosecute or to
comply with a court order for abuse of discretion. Emerson v.
Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002).

19
Judge’s sua sponte recommendation, was not a proper exercise
of discretion.

“The determination whether to extend time [under Rule
4(m) of the Federal Rules of Civil Procedure] involves a two-
step inquiry. The district court first determines whether good
cause exists for a plaintiff’s failure to effect timely service. If
good cause exists, the extension must be granted. If good cause
does not exist, the district court must consider whether to grant
a discretionary extension of time.” Boley v. Kaymark, 123 F.3d
756, 758 (3d Cir. 1997) (internal citations omitted).

The Magistrate Judge, and the District Court by virtue
of its adoption of the R&R, did not undertake either of those
required steps. The Court did not address the Appellants’
December 2017 statement detailing their further efforts to
effectuate service on the Federal Defendants, and likewise
failed to take note of the Federal Defendants’ post-R&R
request for an extension of time to respond to the Amended
Complaint, which relief the Magistrate Judge actually granted.
The Federal Defendants apparently were willing to proceed
with the case in some manner and, but for the order of
dismissal, may have been willing to waive defects in the
service of process. That remains to be seen, though their late-
filed motion to reopen the case only to seek dismissal indicates
otherwise. In the meantime, we will vacate the District Court’s
dismissal of the claims against the Federal Defendants.

III. CONCLUSION

For the foregoing reasons, we will affirm in part and
vacate in part the District Court’s dismissal of the Appellants’
claims against the GEO Defendants, vacate the District Court’s

20
dismissal of the Appellants’ claims against the Federal
Defendants for failure to prosecute, and remand this case for
further proceedings.

21