NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N O . 05-5034

D O R O T H Y I. FINCH,

Appellant

v. C H A R L E S A. BUECHEL, JR., Esquire;

R IC K SAMUEL FERRIS; JUDGE MAX BAER

O n Appeal From the United States District Court

F o r the Western District of Pennsylvania

(D .C . Civ. No. 04-cv-01856)

D is tric t Judge: Honorable Thomas M. Hardiman

S u b m itte d Under Third Circuit L.A.R. 34.1(a)

J u ly 26, 2006

B e f o re : MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

(F ile d July 27, 2006)

O P IN IO N

P E R CURIAM

T h is appeal arises from the orders of the United States District Court for the

W e ste rn District of Pennsylvania dismissing Appellant Dorothy Finch's complaint

p u rs u a n t to Federal Rule of Civil Procedure 12(b)(6) with respect to defendants Baer and B u ec h el and granting summary judgment in defendant Ferris's favor.

I n December 2004, Finch filed a civil rights Complaint seeking damages against d e f en d a n ts Ferris, Buechel, and Baer, for actions taken in a medical malpractice action b ro u g h t by Finch against Ferris in the Allegheny County Court of Common Pleas. Finch c la im e d that the defendants conducted a sham non-jury trial during which they d is c rim in a te d against her as a pro se plaintiff, and that they also conspired to violate her c iv il rights and negligently failed to prevent the violation of her civil rights, all in v io latio n of 42U.S.C. §§ 1981, 1983, 1985, and 1986. She also raised a state law claim o f intentional infliction of emotional distress.

T h e District Court dismissed Finch's civil rights claims against Buechel and Baer f o r failure to state a claim pursuant to Rule 12(b)(6). The District Court held that Finch f a ile d to allege that Buechel, Ferris's private attorney in the medical malpractice action, a c te d under color of state law and thus failed to state a claim pursuant to § 1983. The D is tric t Court also held that Finch failed to state a claim upon which relief could be g ra n te d as to the §§ 1981, 1985, and 1986 claims because Finch failed to allege that B u e c h el discriminated against her on account of her race. The District Court determined th a t defendant Baer was immune from suit under the doctrine of absolute judicial im m u n ity because all of actions Finch alleged that he took were performed within the s c o p e of his jurisdiction as the trial judge presiding over the medical malpractice action.

T h e District Court also concluded that Finch's claims against Baer were barred by the R o o k er-F el d m an Doctrine.1 Finch filed a reconsideration motion which the District Court d e n ie d .

F e rris filed a motion for summary judgment claiming that Finch failed to allege sta te action under § 1983, and failed to state a claim under §§ 1981 and 1985 that Ferris d is c rim in a te d against her, or conspired to discriminate against her, on account of her race.

The District Court agreed, ruling that Finch failed to establish any nexus between Dr.

F e rris' s conduct and any deprivation of her constitutional rights "under color of state la w ." The District Court also determined that Finch's status as a pro se plaintiff did not m a k e her a member of a class protected under § 1985. And the District Court held that F in c h failed failed state a claim under § 1981 because the record was devoid of any in d ica tio n that she belonged to a racial minority and that Dr. Ferris intentionally d i sc r im in a t e d against on account of her race. The District Court declined to exercise ju risd ictio n over Finch's state law claim. Finch filed a timely appeal.

W e have jurisdiction pursuant to 28U.S.C. § 1291. We exercise plenary review o v e r the order granting summary judgment. GFL Advantage Fund, Ltd. v. Colkitt, 272 F .3 d 189, 198-99 (3d Cir. 2001). Summary judgment is proper when there is no genuine is s u e of material fact and the movant is entitled to judgment as a matter of law. Id. at 1 9 9 . We view the evidence in the light most favorable to the nonmovant. Id. When a m o v a n t shows the absence of a genuine issue, however, the burden shifts to the n o n m o v a n t to present evidence sufficient to permit a jury to find in her favor. Id. Our r e v ie w of the District Court's dismissal pursuant to Fed. R. Civ. P. 12(b)(6) is likewise p le n a ry. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3 r d Cir. 1998). We accept as tru e all factual allegations in the complaint and will affirm a dismissal under Rule 1 2 (b )(6 ) only if it is certain that no relief can be granted under any set of facts which c o u ld be proved. Steamfitters Local Union No. 420 Welfare Fund v. Phillip Morris Inc., e t al., 171 F.3d 912, 919 (3 r d Cir. 1999). We will affirm.

F irs t, we agree with the District Court's conclusion and reasoning that Judge Baer is immune from suit. Turning to the § 1983 claims against the remaining defendants, F in c h must allege a deprivation of a constitutionally protected right and that the alleged d e p r iv a t io n was committed by a person acting under color of state law. West v. Atkins, 4 8 7 U.S. 42 (1988); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).

Assuming all of Finch's allegations against Buechel to be true, as we must, and viewing th e facts with respect to defendant Ferris in the light most favorable to Finch, we c o n c lu d e that there is no set of facts from which we can infer state action on the part of d e f en d a n ts Buechel and Ferris. Ferris, through his private attorney, defended himself at tria l in Finch's medical malpractice action. We find no nexus between Judge Baer and the private defendants Buechel and Ferris such that these private defendants may be fairly tre a te d as "state actors." L ik e w is e , with respect to the § 1985 conspiracy claim, we find nothing in the C o m p l a in t or in the record from which we can draw an inference of a racial or otherwise class-b ase d motive for the defendants' alleged actions that would support a claim under § 1 9 8 5 (2) or (3). See Davis v. Township of Hillside, 190 F.3d 167, 171 (3d Cir. 1999) (§ 1 9 8 5 (2 )); Griffin v. Breckenridge, 403 U.S. 88 (1971) (§ 1985(3)). Nor can we find a n yth in g in the record or the Complaint from which we can infer an understanding among d e f en d a n ts Baer, Buechel, and Ferris to deprive Finch of her constitutional rights on a c c o u n t of her race. In the absence of a § 1985 conspiracy, Finch cannot state a claim p u rsua n t to § 1986. See Clark v. Clabaugh, 20 F.3d 1290, 1295 n. 5 (3d Cir. 1994).

W e have thoroughly reviewed the remaining arguments Finch makes on appeal a n d find them meritless. Accordingly, we will affirm the judgment of the District Court.

1 We need not address the District Court's ruling pursuant to the Rooker-Feldman D o c t rin e because we are affirming on other grounds.