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2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-5-2025 
Dawn Perlmutter v. Trina Varone 
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Recommended Citation 
"Dawn Perlmutter v. Trina Varone" (2025). 2025 Decisions. 107. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/107 
This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
BLD-071        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2978 
___________ 
 
DAWN PERLMUTTER; THOMAS BOLICK  
 
v. 
 
TRINA VARONE; JEFFREY VARONE, H/W; SUTTON INVESTMENTS LLC; 
UNITED STATES OF AMERICA; ATTORNEY GENERAL UNITED STATES OF 
AMERICA; U.S. DEPARTMENT OF JUSTICE     
 
THOMAS BOLICK, 
        Appellant                         
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 2-21-cv-05018) 
District Judge:  R. Barclay Surrick 
____________________________________ 
 
Submitted on Appellees’ Motion for Summary Action  
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
January 23, 2025 
Before:  SHWARTZ, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: February 5, 2025) 
_________ 
 
OPINION* 
_________ 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
PER CURIAM 
 Thomas Bolick appeals pro se from the District Court’s order dismissing his 
complaint.  We will summarily affirm the District Court’s judgment.  See 3d Cir. L.A.R. 
27.4; 3d Cir. I.O.P. 10.6. 
 Bolick and Dawn Perlmutter filed an amended complaint in the Eastern District 
Court of Pennsylvania seeking “the return of stolen property.”  Dist. Ct. Dkt. No. 13 at 1.  
According to the complaint, Bolick and Perlmutter had inheritance rights to Joan Sutton’s 
estate, but defendants Trina and Jeffrey Varone fraudulently gained control over the 
estate and conspired to deny the plaintiffs access to fair court proceedings.  Bolick and 
Perlmutter brought First Amendment, civil conspiracy, racketeering, and due process 
claims against the Varones.   
The complaint also alleged that the Varones received money from the United 
States through contracts with Sutton Investments LLC, the business in which Sutton, the 
decedent, had a controlling interest.  Bolick and Perlmutter further alleged that the 
Attorney General continued to do business with the Varones despite knowing that Bolick 
and Perlmutter were “lawful owners of the contract,” that the Attorney General “breached 
the contract by failing to include Plaintiffs in material matters,” and that the United States 
was aware of the facts.  Dist. Ct. Dkt. No. 13 at 7, 13.  Bolick and Perlmutter brought due 
process and breach-of-contract claims against the federal defendants.   
3 
 
Perlmutter, Bolick, and the Varones have litigated Sutton’s estate for over a 
decade.1  The United States and the Attorney General moved to dismiss this complaint.   
They argued in part that res judicata barred the plaintiffs’ claims against them, as the 
claims had already been raised and dismissed in a prior lawsuit.  See Perlmutter v. 
Varone, No. 8:19-cv-03402, 2020 WL 2839097 (D. Md. June 1, 2020), aff’d, 848 F. 
App’x 148 (4th Cir. May 25, 2021) (per curiam).  The District Court granted the motion 
and dismissed the complaint against all the defendants with prejudice.  Bolick appealed 
the District Court’s dismissal, and the United States, the Department of Justice, and the 
Attorney General moved to summarily affirm the District Court’s judgment.2   
We have jurisdiction under 28 U.S.C. § 1291.  We exercise plenary review over 
the District Court’s dismissal.  See Twin City Fire Ins. Co. v. Glenn O. Hawbaker, Inc., 
118 F.4th 567, 574 (3d Cir. 2024); Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 172 
(3d Cir. 2009).  We may affirm the District Court’s judgment for any reason supported by 
the record, and we may summarily affirm the judgment if the appeal presents no 
 
1 See, e.g., Perlmutter v. Varone, 59 F. Supp. 3d 107 (D.D.C. 2014); Perlmutter v. 
Varone, 645 F. App’x 249 (4th Cir. 2016); Perlmutter v. Varone, No. 2127, 2018 WL 
1151597 (Md. Ct. Spec. App. Mar. 5, 2018); Perlmutter v. Varone, No. 1652, 2020 WL 
6707829 (Md. Ct. Spec. App. Nov. 16, 2020); Sutton Invs. LLC v. Perlmutter, No. 
1:21-cv-3226, 2021 WL 6062635 (D.D.C. Dec. 22, 2021); Perlmutter v. Sutton Invs., 
LLC, 284 A.3d 939 (Pa. Super. Ct. 2022). 
 
2 Even though not all appellees filed a motion for summary affirmance, we advised all 
parties that we would consider the possibility of summary action as to all appellees.  
See 3d Cir. LAR 27.4; I.O.P. 10.6.  Bolick responded.    
 
4 
 
substantial question.  See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per 
curiam).  
To survive dismissal, the litigant’s complaint must allege sufficient facts to state a 
plausible claim for relief.  Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).  Although the 
Court construes a pro se litigant’s claims liberally, see Vogt v. Wetzel, 8 F.4th 182, 185 
(3d Cir. 2021), mere conclusory allegations are insufficient to state a claim for relief, 
Iqbal, 556 U.S. at 678.   
Res judicata requires “(1) a final judgment on the merits in a prior suit involving 
(2) the same parties or their privies and (3) a subsequent suit based on the same cause of 
action.”  Davis v. Wells Fargo, 824 F.3d 333, 341 (3d Cir. 2016) (quoting Lubrizol Corp. 
v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991)).  “The doctrine of res judicata bars not 
only claims that were brought in a previous action, but also claims that could have been 
brought.”  In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008). 
In 2020, Bolick and Perlmutter filed an amended complaint against the Varones, 
the United States, and other defendants for conduct arising from the same alleged 
fraudulent scheme driving the litigation in this case.  Just as they did in this case, Bolick 
and Perlmutter alleged in the Maryland District Court that the Varones fraudulently 
gained control over Sutton’s estate and conspired and schemed to deny them fair access 
to court proceedings.  And Bolick and Perlmutter alleged that the United States was liable 
under the Federal Tort Claims Act by contracting with Sutton Investments LLC and 
authorizing or acquiescing in the Varones’ fraudulent conduct.  The Maryland District 
5 
 
Court dismissed the complaint with prejudice, in part because the plaintiffs failed to 
allege plausibly that the Varones engaged in state action or conspired to deprive the 
plaintiffs of a constitutional right, and the United States could not be held liable under the 
Federal Tort Claims Act for the conduct of a privately-owned corporation.  Perlmutter, 
2020 WL 2839097, at *3-4.  Having been affirmed by the Fourth Circuit, see Perlmutter, 
848 F. App’x 148, the District Court order is a final judgment on the merits that precludes 
most of the claims against the Varones.3  See Federated Dep’t Stores, Inc. v. Moitie, 452 
U.S. 394, 399 n.3 (1981).   
Bolick argues that preclusion does not apply because the fraudulent scheme 
continued after the District of Maryland’s judgment, and thus the amended complaint in 
this case presented new facts.  We need not resolve that issue because to the extent that 
the claims are not precluded, they fail to meet the Iqbal standard.  The complaint in this 
case newly alleged that the Varones brought the matter to Pennsylvania to defame the 
plaintiffs, and that they bribed a judge to grant a pre-filing injunction and disregard 
record admissions, denying the plaintiffs due process and access to courts.  Without 
sufficient supporting facts, these conclusory allegations do not state a plausible claim 
against the Varones.  See Iqbal, 556 U.S. at 678 (citation omitted) (“A pleading that 
offers labels and conclusions or a formulaic recitation of the elements of a cause of action 
 
3 The plaintiffs argued that the District of Maryland judgment is void, but they offered no 
support other than bare allegations of fraud, corruption, and due process violations.  They 
even moved for the District Court in this case to set aside the judgment from the District 
of Maryland pursuant to Federal Rules of Civil Procedure 60(b)(3) and (4), but the 
District Court reasonably denied the motion.     
6 
 
will not do.”).  The contract and due process claims against the United States, the 
Attorney General, and the Department of Justice similarly fail.  See id. 
Accordingly, the District Court did not err by dismissing the amended complaint. 
Considering the plaintiffs’ litigation history, it was not an abuse of discretion to conclude 
that further amendment would be futile.  See Grayson v. Mayview State Hosp., 293 F.3d 
103, 108 (3d Cir. 2002).  We have examined the District Court’s other rulings in this 
case, and we discern no reversible error.  Thus, we grant the motion for summary action 
and will summarily affirm the District Court’s judgment. 


English

Dawn Perlmutter v. Trina Varone

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-6-2025 
Sherry Miller v. Campbell Soup Co 
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Recommended Citation 
"Sherry Miller v. Campbell Soup Co" (2025). 2025 Decisions. 112. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/112 
This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-1812 
__________ 
 
SHERRY L. MILLER, 
         Appellant 
v. 
 
CAMPBELL SOUP COMPANY RETIREMENT & PENSION PLAN 
ADMINISTRATIVE COMMITTEE 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 1:19-cv-11397) 
District Judge:  Honorable Robert B. Kugler 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
December 23, 2024 
Before:  KRAUSE, PHIPPS, and ROTH, Circuit Judges 
 
(Filed: February 6, 2025) 
___________ 
 
OPINION* 
___________ 
 
 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
 
2 
PER CURIAM 
 Sherry Miller appeals the District Court’s judgment in favor of Appellees.  For the 
reasons that follow, we will affirm the District Court’s judgment. 
 The procedural history of this case and the details of Miller’s claims are well 
known to the parties, set forth in the District Court’s opinion, and need not be discussed 
at length.  Miller worked for Campbell Soup Company for almost 30 years, with a brief 
break in service in 2001.  Before her break in service, Miller accrued benefits under a 
traditional pension formula per a retirement plan (“the Plan”), but, after the break in 
service, she accrued them under a cash balance formula.  In 2015, Miller retired and, in 
return for 101 weeks of severance pay and medical coverage, signed a release of claims 
against Appellee.   
In her amended complaint, Miller alleged that she was entitled to over 28 years of 
benefits under the pension formula instead of only 15 years of benefits.  She asserted that 
that Appellee breached its fiduciary duty when it misrepresented what her retirement 
benefits would be (“misrepresentation claim”). She also raised a claim of equitable 
estoppel based on these alleged misrepresentations.   
 On Appellee’s motion to dismiss, the District Court dismissed her claim that she 
was entitled to additional benefits under the Plan.  It allowed her misrepresentation and 
estoppel claims to proceed.  Both Miller and Appellees filed motions for summary 
judgment.  Having determined that Miller’s remaining claims were barred by the release 
 
 
3 
she had signed when she retired, the District Court granted Appellees’ motion for 
summary judgment and denied Miller’s motion as moot.  Miller filed a timely motion for 
reconsideration, and, after the District Court denied that motion, filed a timely notice of 
appeal. 
We have jurisdiction under 28 U.S.C. § 1291 and exercise de novo review over the 
District Court’s order granting summary judgment.  Razak v. Uber Techs., Inc., 951 F.3d 
137, 144 (3d Cir. 2020).  A grant of summary judgment will be affirmed if our review 
reveals that “there is no genuine dispute as to any material fact and the movant is entitled 
to judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  We review the denial of a motion 
for reconsideration for an abuse of discretion.  See Budget Blinds, Inc. v. White, 536 F.3d 
244, 251 (3d Cir. 2008).  We agree with the District Court’s thorough analysis of Miller’s 
claims and have little to add to its discussion.  We will briefly address Miller’s arguments 
on appeal. 
On appeal, Miller states that she is seeking recovery of benefits resulting from 
Appellee’s breach of its fiduciary duties.1  She asks that we apply our decision in Pell v. 
E.I. DuPont de Nemours & Co. Inc., 539 F.3d 292, 297 (3d Cir. 2008), where we 
 
1 In her opening brief, Miller does not challenge the District Court’s dismissal of her 
claim that she was entitled to increased benefits under the Plan.  While she disclaims such 
a forfeiture in her reply brief, she does not explain how she was entitled to increased 
benefits under the terms of the Plan.  Instead, with her misrepresentation claim, she 
appears to be requesting additional benefits that she is not entitled to under the Plan but 
allegedly was mistakenly led to believe she would receive.   
 
 
4 
affirmed the District Court’s granting relief on an ERISA claim.  See Appellant Br. at 25.  
The issue on appeal, however, is not whether Miller would be entitled to relief on her 
misrepresentation claim but whether she released that claim when she retired. 
Miller argues that her claim was not covered by the release because the release did 
not cover claims arising after the release was signed.  See Release at ¶ 4(f).  She contends 
that the claim did not accrue until she discovered the alleged misrepresentations in 2017.  
We, however, have held that a claim for a breach of fiduciary duty based on 
misrepresentation was completed and accrued on the date the employee relied on the 
misrepresentations to her detriment.  See In re Unisys Corp. Retiree Med. Benefit 
“ERISA” Litig., 242 F.3d 497, 505–06 (3d Cir. 2001).  Thus, the claim that Appellee 
misrepresented her benefits did not arise two years after the release was signed, but rather 
arose when Miller signed the release and retired allegedly in reliance on the expected 
benefits. 
Miller also notes that she did not release claims for vested benefits under a 
qualified retirement plan and contends that her claim is for vested benefits.  See Release 
at ¶ 4(d).  However, as noted above, Miller’s claim for benefits is not based on the Plan 
but rather on the alleged misrepresentations by Appellee as to what her retirement 
benefits would be.  Thus, it is not a claim for “vested benefits under a qualified retirement 
plan.”  And the Release specifically mentioned that claims of misrepresentation and 
equitable estoppel were covered by the agreement.  See Release at ¶ 3(b)(xi).  
 
 
5 
 Miller further contends that she did not knowingly release the misrepresentation 
claim because she was unaware of it until two years after signing the release.  She argues 
that a release of a claim for benefits under an ERISA plan is void unless the individual is 
aware of the released rights.  See Appellant Br. at 21.  However, as noted above, the 
misrepresentation claim is not a claim for benefits under the Plan.  And the language of 
the release informed Miller that she would be releasing “any and all claims that you have 
or may have.”  Release at ¶ 3(b).  We have interpreted similar “may have” language to 
release claims that the parties had but may discover later.  See Fisher Dev. Co. v. Boise 
Cascade Corp., 37 F.3d 104, 108 (3d Cir. 1994) (explaining that “[g]iven the limitation to 
claims based on events occurring before the date of the release, we can only take the 
phrase ‘hereafter may have’ to mean that the parties wished to release not only those 
claims of which they were currently aware, but also those they might subsequently 
discover based on their relationship prior to the execution of the release”).   
Considering the totality of the circumstances, we agree that Miller’s release was 
knowing and voluntary.  See Coventry v. U.S. Steel Corp., 856 F.2d 514, 523 (3d Cir. 
1988) (analyzing release under a totality of the circumstances test).  Miller, a professional 
with thirty years of experience, was given 45 days to consider the release and consult an 
attorney before signing and, as discussed below, received substantial consideration.  Id. 
 
 
6 
(describing factors to be considered in determining whether a release was entered into 
knowingly and voluntarily).2 
Finally, Miller argues that she did not receive any consideration for the release of 
her claims because other employees were offered the same severance benefits.  As noted 
above, Miller received 101 weeks of salary as severance pay (which the parties value at 
approximately $196,000) and continued insurance coverage (the value of which has not 
been described).  Miller does not explain how other employees’ receiving severance pay 
undermines the consideration she received.  She also appears to argue that she did not 
receive any consideration because she estimates that the damages on her 
misrepresentation claim would be $292,000, and this estimate is larger than the salary 
portion of her severance benefits.  At the time of the release, however, there had been no 
determination that Miller was entitled to these damages.  Coventry, 856 F.2d at 523 
(listing as a factor to be considered “whether the consideration given in exchange for the 
waiver exceeds employee benefits to which the employee was already entitled by contract 
or law”).   
In challenging the District Court’s denial of her motion for reconsideration, Miller 
appears to argue that the District Court ignored her misrepresentation claim.  As 
 
2 Miller testified at her deposition that she did not consult with an attorney because she 
had dealt with a number of contract agreements in her work for Campbell Soup.  See 
Supp. App’x at 264. 
 
 
7 
explained above, however, the District Court did not need to reach the merits of Miller’s 
claim because it determined that she had released the claim. 
For the reasons above as well as those set forth by the District Court, we will 
affirm the District Court’s judgment. 
 


Sherry Miller v. Campbell Soup Co

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-28-2025 
S. M. v. Chichester School District 
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Recommended Citation 
"S. M. v. Chichester School District" (2025). 2025 Decisions. 175. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/175 
This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-2727 
____________ 
 
S.M., by and through his parents, Michael C. and Danielle C. 
 
v. 
 
CHICHESTER SCHOOL DISTRICT, 
              Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:21-cv-04266) 
District Judge: Honorable Anita B. Brody 
____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
on February 27, 2025 
 
Before: HARDIMAN, PORTER, and RENDELL, Circuit Judges. 
 
(Filed: February 28, 2025) 
____________ 
 
OPINION* 
____________ 
 
HARDIMAN, Circuit Judge. 
 Chichester School District appeals the District Court’s order requiring it to place a 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
student, S.M., in a specific residential educational facility. We will affirm. 
I 
S.M. is a seventeen-year-old boy with severe autism and intellectual disabilities. 
His parents filed an administrative complaint against Chichester School District with the 
Pennsylvania Office for Dispute Resolution, asserting claims under the Individuals with 
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and Section 504 of the 
Rehabilitation Act, 29 U.S.C. § 794. The parents alleged that Chichester denied S.M. a 
free appropriate public education (FAPE) by failing to offer him an individualized 
education program (IEP) that would, upon his release from a residential treatment 
facility, place him in a residential educational facility. 
 The special education administrative Hearing Officer dismissed the complaint. He 
reasoned that because Chichester was the “resident district” and not the “host district” 
under 24 Pa. Stat. § 13-1306, it had no duty to provide S.M. with an IEP unless his 
release from his residential treatment facility was imminent. The Hearing Officer 
alternatively concluded that if Chichester had to provide S.M. with an IEP, it had to offer 
to place him in a residential educational facility. 
The parents sued Chichester in federal court, arguing that the Hearing Officer’s 
legal conclusions were erroneous. They moved for a preliminary injunction requiring 
Chichester to place S.M. in a residential educational facility. The District Court rejected 
the Hearing Officer’s legal conclusions and held: (1) Chichester had assumed the 
responsibilities of a host district and (2) there was no imminency requirement in the 
IDEA. The District Court issued a preliminary injunction ordering Chichester to arrange 
 
3 
 
for S.M. to move to a mutually agreeable residential educational placement. Chichester 
appealed, and we affirmed the District Court’s order entering the preliminary injunction. 
Chichester offered to place him in Elwyn’s residential educational program to 
comply with the preliminary injunction, but S.M. argued that Elwyn’s program was 
inadequate. While the litigation over the preliminary injunction continued, S.M. lost 
placements at two other facilities. Because so much time had elapsed, the District Court 
appointed an expert to evaluate S.M. The expert filed her report in July 2024, and she 
recommended that S.M. be placed in a residential educational facility. 
In August 2024, S.M. received an offer, open for three weeks, from the Melmark 
School. The District Court heard argument and received evidence from the parties during 
two proceedings. The District Court agreed with the expert that S.M. still required a 
residential educational placement and found that it was unlikely he would make progress 
at Elwyn. Determined not to let another placement slip away, the District Court ordered 
Chichester to secure and fund S.M.’s placement at Melmark. Chichester timely appealed 
that order. 
II1 
Chichester first argues that the District Court erred by declining to remand the 
case to the Pennsylvania Office for Dispute Resolution. We disagree. We previously held 
that the parents exhausted their claims, so no remand was necessary. The District Court 
 
1 The District Court had subject-matter jurisdiction under 20 U.S.C. § 1415(i)(3)(A) and 
28 U.S.C. §§ 1331 and 1343(a)(3). We have jurisdiction to review the District Court’s 
order effectively modifying its preliminary injunction under 28 U.S.C. § 1292(a)(1). 
 
4 
 
properly determined which placement offers would satisfy its preliminary injunction by 
providing S.M. with a FAPE. 
 We are also unpersuaded by Chichester’s argument that the District Court clearly 
erred by relying on the expert’s opinion. After reviewing the Court’s factual findings 
based in part on the expert report, we are not “left with the definite and firm conviction 
that a mistake has been committed.” United States v. Waterman, 755 F.3d 171, 174 (3d 
Cir. 2014) (cleaned up). The record supports the District Court’s factual findings. 
 The District Court did not abuse its discretion by hearing argument and taking 
evidence in the August 2024 proceedings on short notice. The placement offer at issue 
was set to expire in about one week, and S.M. had already twice lost a placement offer 
because it expired while Chichester litigated the placement. In this context, the Court 
acted within its discretion. 
 Nor was the District Court required to include an age limit or a residency 
requirement in its order. The order instructed Chichester to “take all necessary steps to 
secure S.M.’s residential educational placement at the Melmark School for his immediate 
admission—including signing an enrollment contract and completing all related 
requirements—on or before September 5, 2024” and to “make all necessary arrangements 
to fund S.M.’s placement at the Melmark School.” App. 2. Nothing in this order suggests 
that Chichester must provide S.M. with a FAPE once he ages out under the law. Nor does 
it require Chichester to continue to fund S.M.’s placement if his mother moves out of the 
school district. 
 
5 
 
 Chichester also argues that the District Court erred by requiring it to sign an 
enrollment contract on short notice. We are unpersuaded. It is true that Chichester must 
follow certain procedures before executing contracts under the Pennsylvania Sunshine 
Act, 65 Pa. Cons. Stat. § 701 et seq., and the Pennsylvania Public School Code of 1949, 
24 Pa. Stat. § 1-101 et seq. But Chichester was long aware that it would have to sign a 
contract to place S.M. in a residential educational facility on short notice, and it knew for 
nearly a month in advance that it might have to act quickly to place S.M. at the Melmark 
School. The District Court did not err by requiring Chichester to comply with a court 
order quickly even though it may have been difficult for Chichester to do so while 
complying with state law. 
Finally, the Court acted within its discretion when it declined to dissolve the 
preliminary injunction. Sprint Commc’ns Co. L.P. v. CAT Commc’ns Int’l, Inc., 335 F.3d 
235, 241 (3d Cir. 2003). Chichester argues that the circumstances had changed and that it 
had complied with the preliminary injunction. But the Court determined that S.M. still 
needed a residential educational placement to receive a FAPE and found Elwyn would 
not provide him one. And, in any event, S.M. is entitled to remain in his current 
placement at least until the proceedings have been completed. 20 U.S.C. § 1415(j); 
Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 85 (3d Cir. 1996); M.R. v. Ridley Sch. 
Dist., 744 F.3d 112, 119 (3d Cir. 2014). 
 
6 
 
III 
 This matter has a contentious procedural history. Barring a negotiated settlement, 
we trust that the District Court will soon decide the final merits of the case. For the 
reasons stated, we will affirm the District Court’s order. 


S. M. v. Chichester School District

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-7-2025 
Isaac Usoroh v. Todd Koger, Sr. 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Isaac Usoroh v. Todd Koger, Sr." (2025). 2025 Decisions. 13. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/13 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
No. 24-2614 
__________ 
ISAAC USOROH, 
v. 
TODD ELLIOTT KOGER, SR.; TODD ELLIOTT KOGER, JR. 
TODD ELLIOTT KOGER, SR., 
       Appellant 
____________________________________ 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. Civil Action No. 2:22-cv-01823) 
District Judge:  Honorable William S. Stickman, IV 
____________________________________ 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
December 10, 2024 
Before:  RESTREPO, MATEY, and CHUNG, Circuit Judges 
(Opinion filed: January 7, 2025) 
___________ 
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.
2 
Todd Elliott Koger, Sr., proceeding pro se, appeals the District Court’s order 
denying his post-remand motions.  We will affirm the District Court’s judgment.  
Isaac Usoroh initiated an ejectment action against Todd Koger, Sr., and Todd 
Koger, Jr.  Todd Koger, Sr., (“Appellant”) filed a notice of removal in the United States 
District Court for the Western District of Pennsylvania, and he asserted that the District 
Court had diversity jurisdiction over the matter.  The District Court remanded the case to 
the Allegheny County Court of Common Pleas.  This Court dismissed Appellant’s 
appeals from the remand order.1 
The next year, Appellant and Elliott-Todd Parker Koger moved to proceed in 
forma pauperis and filed a “motion to reopen case and/or filing of new complaint with 
IFP request.”  The motions contained 1) a federal civil complaint against Usoroh and 
other defendants; 2) an “application for request for IFP status,” and 3) a “request for 
appointment of counsel.”  The complaint’s civil cover sheet indicated that the Kogers 
brought an “Original Proceeding” arising under, inter alia, federal civil rights statutes, the 
bankruptcy code, and the Racketeer Influenced and Corrupt Organizations Act.  The 
Kogers alleged, for instance, that the defendants violated due process, violated the Fair 
Housing Act, and participated in a conspiracy that included fraudulently transferring 
property.  The District Court denied the motions, reasoning that it could not reopen the 
case because it had lost jurisdiction.  Appellant moved for reconsideration, which the 
1 See Usorph v. Koger, Sr., et al., C.A. No. 23-1029; Usoroh v. Koger, Sr., et al., C.A. 
No. 23-1632. 
 
3 
court denied.  Appellant filed a notice of appeal.2  We have jurisdiction under 28 U.S.C. 
§ 1291.  See Ohntrup v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir. 1986) (explaining 
that most post-judgment orders are final decisions if the district court has completely 
disposed of the matter).3   
Because Appellant is proceeding pro se, we liberally construe his pleadings.  See 
Haines v. Kerner, 404 U.S. 519, 520 (1972).  But pro se litigants still must “abide by the 
same rules that apply to all other litigants.”  Mala v. Crown Bay Marina, Inc., 704 F.3d 
239, 245 (3d Cir. 2013).  To present an issue to the Court for review, a litigant’s opening 
brief must include, among other things, a statement of the issues, the legal argument 
explaining why the district court decided the issues incorrectly, and the facts and legal 
authorities supporting that argument.  See Fed. R. App. P. 28.  Thus, an appellant’s 
failure to raise an issue in his opening brief, even when proceeding pro se, renders it 
forfeited.  See Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002).  Here, 
Appellant’s brief does not address the District Court’s reasoning at all, much less explain 
why its disposition was erroneous.  Rather, the brief reads as a lengthy complaint that 
challenges a sheriff’s sale and related court decisions.  As a result, any issues on appeal 
 
2 We liberally construe Appellant’s submissions as challenging the denial of the motion 
to proceed in forma pauperis, the order denying the motion to reopen the case, and the 
denial of the motion for reconsideration.  See Powell v. Symons, 680 F.3d 301, 306 n.2 
(3d Cir. 2012). 
3 We recognize that ordinarily, the Court lacks jurisdiction over non-collateral orders 
issued after a remand for lack of subject matter jurisdiction.  See Agostini v. Piper 
Aircraft Corp., 729 F.3d 350, 353-54 (3d Cir. 2013).  But the Kogers’ “motion to reopen” 
is best viewed as the filing of a new federal civil complaint.  See Lewis v. Att’y Gen., 
878 F.2d 714, 722 n.20 (3d Cir. 1989) (explaining that we judge a pleading on its 
substance, rather than its form or label).  
 
4 
are forfeited.  See Higgins v. Bayada Home Health Care Inc., 62 F.4th 755, 763 (3d Cir. 
2023).   
 Accordingly, we will affirm the District Court’s order.  Appellant’s motions to 
supplement the record are denied.  To the extent Appellant seeks other relief on appeal, it 
is denied. 


Isaac Usoroh v. Todd Koger, Sr.

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-15-2025 
USA v. Torey White 
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"USA v. Torey White" (2025). 2025 Decisions. 48. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 23-2870 
____________ 
 
UNITED STATES OF AMERICA,  
Appellant 
 
v. 
 
TOREY WHITE 
____________ 
 
On Appeal from the United States District Court  
for the Middle District of Pennsylvania 
(D.C. Criminal No. 1:16-cr-00212-003) 
District Judge: Honorable Christopher C. Conner 
____________ 
 
Argued on October 29, 2024  
 
Before: HARDIMAN, PHIPPS, and FREEMAN, Circuit Judges 
 
(Opinion filed: January 15, 2025) 
 
 
2 
_______________ 
 
OPINION* 
_______________ 
 
Gerard M. Karam 
Carlo D. Marchioli [Argued] 
Office of United States Attorney 
Middle District of Pennsylvania 
Sylvia H. Rambo United States Courthouse 
1501 N 6th Street, 2nd Floor 
P.O. Box 202 
Harrisburg, PA 17102 
 Counsel for Appellant 
 
Bernadette Donovan 
Matthew L. Engle [Argued] 
Donovan & Engle 
1134 E High Street 
Unit A 
Charlottesville, VA 22902 
 Counsel for Appellee 
 
 
  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
3 
FREEMAN, Circuit Judge. 
 
During Torey White’s triple-homicide trial, the jury foreperson sent a note to the 
District Court.  The note expressed a concern about deliberations.  In response, the 
District Court questioned two jurors outside of the presence of the parties and the court 
reporter.  It also corrected one juror’s recollection of the evidence and instructed the 
jurors to continue deliberating. 
After these ex parte conversations with jurors, the District Court confessed its 
error to the parties and gave them options of how to proceed.  One option was to “do 
nothing and allow the jury to continue deliberations and . . . preserve as an appellate 
matter whether the Court committed an abuse of discretion in returning the jury to 
deliberations after [its] initial sort of fact finding mission.”  App. 3192.  After the jury 
returned its verdict, the Court granted White’s motion for a new trial due to its erroneous 
ex parte conversations with jurors.  
On appeal, the government argues that White waived or forfeited his claim for a 
new trial.  We will affirm the District Court’s order.   
I 
 A grand jury returned an indictment charging White and several co-defendants 
with crimes related to a 2016 triple murder.  White proceeded to trial, where he hotly 
contested the government’s evidence over eleven days of testimony.   
 On the second day of jury deliberations, the foreperson sent the District Court a 
note.  The note said three jurors were concerned that Juror No. 1 had knowledge of the 
case obtained outside of the courtroom.  In response, the Court separately called the 
 
4 
foreperson and Juror No. 1 into a conference room to question them.  The Court 
determined that Juror No. 1 had no outside information; rather, Juror No. 1 had an 
incorrect recollection of a certain witness’s testimony.  The Court corrected Juror No. 1’s 
recollection of what the witness said.  The Court then explained the misunderstanding to 
the foreperson, assured her that Juror No. 1 could be impartial, and directed her to 
welcome Juror No. 1 back into deliberations.   
 A few minutes after speaking with those two jurors, the District Court assembled 
counsel in the courtroom.  It reported that it had received a note expressing concern about 
a juror having outside knowledge about the case, and that it had determined the note 
stemmed from a clear miscommunication between the jurors.  White’s counsel asked 
whether the Court’s conversations with jurors had been on the record (they had not), and 
told the Court, “We’ll discuss it.”  App. 3189.  The Court then adjourned the conference. 
Two hours later, the District Court assembled the parties and counsel for a second 
conference.  It stated that it had erred by having ex parte and off-record conversations 
with jurors.  It also expressed concern about disrupting deliberations again by calling the 
two jurors back in to create an appropriate record.  Given its error and concern about 
additional disruptions, the Court asked the parties what they would like to do.  The Court 
proposed three options: it could (1) attempt to recreate from its memory the conversations 
with the two jurors; (2) call the jurors in again and question them on the record and with 
the parties present; or (3) “do nothing and allow the jury to continue deliberations and 
you can preserve as an appellate matter whether the Court committed an abuse of 
discretion in returning the jury to deliberations after my initial sort of fact finding mission 
 
5 
to determine what the nature of the dispute was.”  App. 3192.  Defense counsel agreed 
that the deliberations should not be disrupted, and they requested more information about 
the Court’s conversations with the jurors.   
The prosecution also agreed that the jury’s deliberations should continue 
uninterrupted.  One of the prosecutors stated: “I don’t think there’s a need to create a 
record at this point.  If there is a verdict, and it is against the Defendant, then there would 
be a reason to create a record and maybe something to do at that point with speaking to 
any of the jurors to see if any of that conduct affected their deliberations.”  App. 3195–
96.  The District Court then informed the parties where its conversations with the jurors 
took place, briefly summarized the conversations, and adjourned the conference.   
A few hours later, the jury returned a divided verdict.  It convicted White of three 
counts of murdering a witness, and it acquitted him of the remaining eight counts brought 
against him.1   
After the verdict, White sought a new trial based on the District Court’s ex parte, 
off-record conversations with jurors.  The government opposed the motion, arguing that 
White waived his opportunity to object to those interactions.  In the alternative, the 
government argued that the District Court did not err by having ex parte conversations 
 
1 As the District Court later stated, the verdict was “both internally inconsistent and 
difficult to reconcile with the evidence, the substantive instructions, and the 
government’s theory of the case.  By all accounts, the jury appears to have returned a 
quintessential compromise verdict.”  App. 28. 
 
6 
with the jurors, and any challenge to the conversations could not satisfy plain-error 
review.   
The District Court determined that White neither waived nor forfeited a challenge 
to its interactions with the jurors.  It reasoned that the Court and the parties “proceeded 
under the third option” the Court provided them—they “d[id] nothing,” which allowed 
the jury to continue its deliberations and permitted White to “‘preserve as an appellate 
matter’ whether [the Court] had erred in handling the juror note.”  App. 17 (quoting App. 
3192).  It found it “clear from the record that all involved, including counsel for the 
government, understood proceeding in this way would not inhibit White’s ability to 
revisit the issue post-trial.”  Id.  Turning to the merits, the District Court concluded that 
its ex parte conversations with the jurors violated White’s rights under the Fifth and Sixth 
Amendments and Federal Rule of Criminal Procedure 43(a), so it granted the motion for 
a new trial.  The government timely appealed.   
II2 
In this appeal, the government argues that White waived his claim for a new trial 
based on the District Court’s ex parte conversations with two jurors.  In the alternative, 
the government argues that White forfeited his claim by failing to request a mistrial or 
other relief upon learning of the ex parte conversations.  We review a district court’s 
determination about whether a party waived or forfeited an argument for abuse of 
 
2 The District Court had jurisdiction under 18 U.S.C. § 3231.  We have jurisdiction under 
18 U.S.C. § 3731. 
 
7 
discretion.  United States v. Dowdell, 70 F.4th 134, 140 (3d Cir. 2023); Kars 4 Kids Inc. 
v. America Can!, 8 F.4th 209, 219 n.9 (3d Cir. 2021).  We also review a district court’s 
ruling on a motion for new trial for abuse of discretion.  United States v. Quiles, 618 F.3d 
383, 390 (3d Cir. 2010). 
A 
 A waiver is the “intentional relinquishment or abandonment of a known right.”  
United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 
458, 464 (1938)).  “We are loath to deem an objection waived without a clear indication 
of a party’s intent to do so.”  United States v. Davis, 105 F.4th 541, 548 (3d Cir. 2024). 
 The government’s waiver argument is based on White’s response when the 
District Court asked how he wished to proceed.  But the District Court’s question was not 
open-ended.  The Court provided three options, one of which was to “do nothing and 
allow the jury to continue deliberations and you can preserve as an appellate matter 
whether the Court committed an abuse of discretion in returning the jury to 
deliberations.”  App. 3192.  When presented with these options, White requested more 
information about what transpired and then agreed the jury should continue deliberating. 
 When the government asserted waiver in the District Court, the Court considered 
the options it presented alongside White’s response, and it determined there was no clear 
indication of waiver.  On this record, that was not an abuse of discretion. 
B 
A forfeiture is “the failure to make the timely assertion of a right,” such as when a 
party inadvertently fails to raise an argument.  Barna v. Bd. of Sch. Dirs. of Panther 
 
8 
Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017) (quoting Olano, 507 U.S. at 733).  
The government argues that, even if there was no waiver, White forfeited any challenge 
to the District Court’s ex parte conversations with jurors when he did not request a 
mistrial and instead agreed that the jury should continue deliberating.3     
True enough, White did not request a mistrial.  But we must be mindful of the 
unique circumstances of this case.  The District Court confessed its error sua sponte, so it 
did not need a party objection to have notice of the error.  Further, at the critical juncture 
for a mistrial motion, the District Court assured White that if he chose to do nothing and 
allowed the jury to continue deliberating, his challenge to the Court’s error would be 
preserved for appellate review.  According to the District Court, White selected that 
option.  The District Court understood its assurance to relieve White of any obligation to 
make a motion to preserve his challenge.  On this record, that no-forfeiture determination 
was not an abuse of discretion.4  
 
3 White argues that the government forfeited its forfeiture argument by failing to assert it 
before the District Court.  We disagree.  In its opposition to White’s motion for a new 
trial, the government first argued that White’s claim was waived and thus unreviewable.  
It then argued in the alternative that, if the claim is not waived, it is unpreserved and 
subject to plain-error review.  Plain-error analysis applies to forfeited claims, not waived 
claims.  Gov’t of V.I. v. Rosa, 399 F.3d 283, 290–91 (3d Cir. 2005) (“Stated most simply, 
‘where there was forfeiture, we apply a plain error analysis; where there was waiver, we 
do not.’” (quoting United States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996))).  So by 
seeking plain-error review for a purportedly unpreserved claim, the government argued 
forfeiture. 
4 Judge Phipps respectfully dissents because in his view the new-trial argument was 
forfeited and does not survive plain-error review. 
 
9 
* * * 
This case involves unique circumstances.  After having ex parte and off-record 
conversations with jurors, the District Court (to its credit) promptly confessed error.  It 
also assured White that his challenge to the error would be preserved for appellate review 
if he did nothing. 
The District Court reviewed the record and determined that White neither forfeited 
nor waived his challenge to the Court’s error.  And our review of that determination is 
deferential.  We discern no abuse of discretion, so we will affirm the District Court’s 
order granting White a new trial. 


USA v. Torey White

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-29-2025 
Francine Ginder v. Commissioner of Social Security 
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"Francine Ginder v. Commissioner of Social Security" (2025). 2025 Decisions. 77. 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
______________ 
 
No. 24-2098 
 
______________ 
 
FRANCINE LEAH GINDER, 
   Appellant 
 
v. 
 
COMMISSIONER OF SOCIAL SECURITY 
______________ 
 
ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA 
(No. 5:23-cv-04230) 
U.S. Magistrate Judge:  Honorable Scott W. Reid 
______________ 
 
Submitted Under Third Circuit LAR 34.1(a) 
January 27, 2025 
______________ 
 
Before: SHWARTZ, KRAUSE, and PORTER, Circuit Judges.  
 
(Filed: January 29, 2025) 
 
______________ 
 
OPINION* 
______________ 
 
 
 
 
 
 * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 
does not constitute binding precedent. 
2 
 
SHWARTZ, Circuit Judge. 
 Francine Leah Ginder appeals the District Court’s order upholding the 
Administrative Law Judge’s (“ALJ”) decision denying her application for disability 
insurance benefits.  Although the ALJ meaningfully reviewed the evidence in assessing 
Ginder’s claim, we will vacate the order and remand for the ALJ to reconsider and 
provide reasons for her residual function capacity (“RFC”) determination.   
I 
In 2019, Ginder applied for social security disability benefits, claiming that she 
could not work due to a back injury, diabetes, fibromyalgia, depression, anxiety, 
insomnia, asthma, and nerve damage in her hands.1  Ginder’s application was denied, and 
she requested a hearing before an ALJ.   
At the hearing, Ginder testified that she had back surgery in 2011,2 and, since 
2016, had experienced back pain that radiated into her hips and legs.  Given her pain, 
Ginder explained that she could only (1) walk for about a block or stand for about ten 
minutes before needing to sit and (2) sit for about thirty minutes before needing to stand. 
The ALJ determined that Ginder was not “disabled” for purposes of receiving 
disability benefits.3  The ALJ found that Ginder had severe impairments of diabetes, 
 
1 Before she stopped working in 2016, Ginder worked as a receptionist, a nursing 
staff coordinator, and an administrative clerk.   
2 Ginder injured her back moving a box off a shelf while at work.  
3 In reaching this determination, the ALJ performed the five-step sequential 
evaluation process for ascertaining whether a person is disabled.  See 20 C.F.R. § 
404.1520(a) (detailing the five-step process); see also Burnett v. Comm’r of Soc. Sec. 
Admin., 220 F.3d 112, 118-19 (3d Cir. 2000) (recounting the five-step process).   
3 
 
obesity, asthma, allergic rhinitis, right carpal tunnel syndrome along with trigger finger, 
and lumbar disc disease.  Given her impairments, the ALJ determined that Ginder had the 
RFC4 to perform light work5 with certain restrictions.6  In making that determination, the 
ALJ found that the evidence did “not support the severity of the symptoms and 
limitations she alleged.”  AR 30.     
After the Appeals Council denied Ginder’s request for review, Ginder appealed to 
the District Court.7  The Court determined that the ALJ’s decision was supported by 
substantial evidence and entered judgment in favor of the Commissioner of Social 
Security.  Ginder v. O’Malley, No. 23-4230, 2024 WL 1683624, at *2, *9 (E.D. Pa. Apr. 
18, 2024) (citing 42 U.S.C. § 405(g)).  
 
4 A claimant’s RFC is the most work she can perform despite her physical and 
mental limitations.  20 C.F.R. § 404.1545(a)(1).   
5 “Light work involves lifting no more than 20 pounds at a time with frequent 
lifting or carrying of objects weighing up to 10 pounds.  Even though the weight lifted 
may be very little, a job is in this category when it requires a good deal of walking or 
standing, or when it involves sitting most of the time with some pushing and pulling of 
arm or leg controls.  To be considered capable of performing a full or wide range of light 
work, [the claimant] must have the ability to do substantially all of these activities.  If 
someone can do light work, [the Social Security Administration] determine[s] that he or 
she can also do sedentary work, unless there are additional limiting factors such as loss of 
fine dexterity or inability to sit for long periods of time.”  20 C.F.R. § 404.1567(b).   
6 The ALJ specifically determined that Ginder could perform light work “limited 
to frequent reaching, handling and fingering; to occasional postural maneuvers; to 
occasional exposure to temperature extremes, humidity, wetness and respiratory irritants; 
and to simple and routine tasks.”  AR 24.  These limitations were intended to 
accommodate Ginder’s carpal tunnel syndrome, allergies, asthma, fatigue, and difficulty 
sleeping.  Based on Ginder’s ability to perform a limited range of light work, as well as 
her age, education, and work experience, the ALJ concluded that Ginder could work in 
jobs that existed in significant numbers in the national economy, such as an assembler of 
small parts or a router, and therefore was ineligible for disability benefits.     
7 Ginder consented to Magistrate Judge jurisdiction.  28 U.S.C § 636.  
4 
 
 Ginder appeals.   
II8 
 Ginder argues that the ALJ failed to justify her conclusion that Ginder could 
perform a limited range of light work.  We agree.   
An ALJ must “set forth the reasons for [her] decision,” Burnett v. Comm’r of Soc. 
Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000), so that “there is sufficient development of 
the record and explanation of findings to permit meaningful review,” Jones v. Barnhart, 
364 F.3d 501, 505 (3d Cir. 2004).  An ALJ’s RFC finding accordingly “must be 
accompanied by a clear and satisfactory explication of the basis on which it rests.”  
Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001) (internal quotation marks omitted).  
This includes giving “some indication of the evidence which [the ALJ] rejects and [her] 
reason(s) for discounting such evidence.”  Burnett, 220 F.3d at 121.  Relatedly, although 
an ALJ “is not required to credit” a claimant’s statements about her symptoms, Chandler 
v. Comm’r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011) (citing 20 C.F.R. 
§ 404.1529(a)), if she chooses to reject or discount such testimony, she “must still explain 
why [she has done so],” Burnett, 220 F.3d at 122; see also Chandler, 667 F.3d at 362 
 
 8 The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g).  We have 
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).  We exercise plenary review 
over ALJs’ legal conclusions, Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d 
Cir. 2011), and review their factual findings and final disability determination under the 
deferential substantial evidence standard, 42 U.S.C. § 405(g); Schaudeck v. Comm’r of 
Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999).  “Substantial evidence is ‘such relevant 
evidence as a reasonable mind might accept as adequate to support a conclusion.’”  
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quoting Reefer v. Barnhart, 
326 F.3d 376, 379 (3d Cir. 2003)).  “It is more than a mere scintilla but may be somewhat 
less than a preponderance of the evidence.”  Id. (internal quotation marks omitted).   
5 
 
(noting that, to ensure meaningful review, an ALJ must explain “the degree to which a 
claimant’s testimony is credited”).  
Here, the ALJ did a commendable job in analyzing the medical evidence,9 but 
failed to adequately explain why she concluded that Ginder could perform a limited range 
of light work.  To engage in light work, one must be able to stand or walk for a majority 
of an eight-hour workday.  See 20 C.F.R. § 404.1567(b); Fargnoli, 247 F.3d at 40; see 
also SSR 83-10, 1983 WL 31251, at *5-6 (Jan. 1, 1983) (“[T]he full range of light work 
requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour 
workday.”); SSR 83-12, 1983 WL 31253, at *4 (Jan. 1, 1983) (similar); accord Jesurum 
v. Sec’y of U.S. Dep’t of Health & Hum. Servs., 48 F.3d 114, 120-21 (3d Cir. 1995) 
(recognizing that an individual unable “to remain in either a sitting or standing position 
 
9 The ALJ’s findings relating to Ginder’s weight and obesity and her pain 
specialists’ treatment notes were supported by substantial evidence.  Contrary to Ginder’s 
assertions, although the ALJ recited the administrative policy’s language concerning 
obesity, see SSR, 19-2p, 2019 WL 2374244 (May 20, 2019), she then discussed Ginder’s 
weight and BMI as they related to her other impairments.     
In addition, the District Court did not engage in improper factfinding as its 
observations were tethered to the record and the ALJ’s decision.  See generally Biestek v. 
Berryhill, 587 U.S. 97, 102 (2019) (“Under the substantial-evidence standard, a court 
looks to an existing administrative record and asks whether it contains sufficien[t] 
evidence to support the agency’s factual determinations.” (internal quotation marks 
omitted) (alteration in original)).  Moreover, Ginder’s suggestion that the ALJ erred by 
not requesting a medical advisor’s review is meritless as ALJs are not required “to seek 
outside expert assistance.”  Chandler, 667 F.3d at 362 (citing 20 C.F.R. §§ 404.1546(c), 
404.1527(e); SSR 96-5p, 1996 WL 374183 (July 2, 1996)).  Ginder’s reliance on Walton 
v. Halter, 243 F.3d 703 (3d Cir. 2001) is inapt.  In Walton, we determined that an ALJ 
should call upon a medical advisor’s services, with reference to a since-rescinded ruling, 
see SSR 83-20, where (1) the ALJ’s selected disability onset date had “no legitimate 
medical basis,” (2) all the medical evidence “suggested an onset [date] prior” to the date 
the ALJ selected, and (3) there was no available “opinion based on personal, 
contemporaneous observation.”  Id. at 709-10.  None of those factors are present here.   
6 
 
for the majority of the workday” cannot perform “light work”).  The ALJ did not identify 
evidence supporting a finding that Ginder could stand or walk for that amount of time.  In 
fact, the record seems to suggest a contrary finding given that the medical evidence does 
not address these subjects10 and Ginder testified that she could only walk for about a 
block, or stand for about ten minutes, before needing to sit, and sit for about thirty 
minutes before needing to stand.  Notably, because the ALJ did not mention that 
testimony, which if credited would suggest Ginder could not perform light work, we are 
unable to tell if it “was not credited or simply ignored.”  Burnett, 220 F.3d at 121 
(quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).   
For these reasons, we cannot determine the basis for the ALJ’s finding that Ginder 
could perform a limited range of light work and therefore will vacate and remand11 for 
the ALJ to reconsider and provide her reasons and evidentiary basis for the RFC 
determination, including explaining (1) the weight she gives Ginder’s relevant testimony 
and why she accepts or discounts it and (2) the basis for her conclusions regarding 
Ginder’s ability to sit, stand, or walk for the time typically required for light or sedentary 
 
10 The pain specialists’ treatment notes say that Ginder had “increased back and 
radicular pain” and “difficulty with ambulation secondary to the pain,” (i.e., difficulty 
walking without assistance), AR 621, but these notes appear to memorialize Ginder’s 
reports of her subjective experience, rather than a medical opinion.   
11 See, e.g., Fargnoli, 247 F.3d at 40 (vacating and remanding where the ALJ 
failed to “explain the basis of his conclusions,” making “it impossible to determine 
whether the ALJ’s finding that [the claimant could] perform light work [was] supported 
by substantial evidence”); Burnett, 220 F.3d at 119 (vacating and remanding where the 
ALJ made “only a conclusory statement without mentioning any specific listed 
impairments or explaining his reasoning”).   
7 
 
work,12 see, e.g., 20 C.F.R. § 404.1567(a)-(b); SSR 83-12, 1983 WL 31253, at *4; SSR 
83-10, 1983 WL 31251, at *5-6. 
IV 
 For the foregoing reasons, we will vacate the District Court’s order and remand 
with instructions to remand to the ALJ for further proceedings consistent with this 
Opinion. 
 
12 We express no view as to Ginder’s RFC and leave to the ALJ to determine 
whether, and explain why, the record shows that Ginder can perform light or sedentary 
work and, if the latter, whether her age compels a particular disability determination.   
 
1 
 
PORTER, Circuit Judge, concurring. 
 I join my colleagues in concluding that the Administrative Law Judge failed to 
adequately explain her conclusions. Lurking in the shadows of this case, however, is a 
separate problem. The primary thrust of Ginder’s appeal is that her obesity is a disability.  
The Social Security Administration agrees obesity can qualify as a disability: all an ALJ 
has to do is apply an “acceptable medical” test, such as the BMI calculator, consider the 
obesity’s severity (“alone” or in combination with symptoms and other impairments), and 
the applicant is on his way to securing benefits. SSR 19-2p, 84 Fed. Reg. 22924 (May 20, 
2019); 20 C.F.R. § 404.1520(a)(4)(ii) (discussing severity). Following that regulatory 
cue, this Court has treated obesity as an impairment. Diaz v. Comm’r of Soc. Sec., 577 
F.3d 500, 503–04 (3d Cir. 2009). 
This notion appears to be a regulatory fiction.  Until recently, we tended to defer to an 
administrative agency on whether it was “act[ing] within its statutory authority,” but now 
we must “exercise [our] independent judgment.” Loper Bright Enters. v. Raimondo, 603 
U.S. 369, 412 (2024). That requires us to focus on the statutory text. Ross v. Blake, 578 
U.S. 632, 638 (2016). 
The benefits statute defines a disabled person as having a “medically determinable 
physical or mental impairment,” 42 U.S.C. § 423(d)(1)(A), which in turn is defined as an 
“impairment that results from anatomical, physiological, or psychological abnormalities 
which are demonstrable by medically acceptable clinical and laboratory diagnostic 
techniques.” Id. § (d)(3). In other words, not all impairments are compensable. To be 
 
2 
 
compensable, the impairment must be the symptom of a condition rather than the 
condition itself.  
It is hard to see why obesity always meets the mark. Obesity is often a standalone 
condition without an underlying medical cause. The Administration admits as much, 
identifying “environment . . . and behavior” as sources of obesity. SSR 19-2p. That is, 
human agency rather than a medical abnormality may be the cause. 
 Broadly reading the benefits statute to protect obesity in general is also difficult in 
light of the ADA, which likewise defines a disability to require “a physical or mental 
impairment.” 42 U.S.C. § 12102(1)(A). Though the ADA lacks a ‘result’ element, the 
EEOC defines impairments as “physiological.” 29 C.F.R. § 1630.2(h)(1). Numerous 
courts have taken up the question of whether obesity alone is a physical impairment 
under the ADA, and the consensus is that it is not. Rather, “a mere physical 
characteristic” like obesity “does not, without more, equal a physiological disorder.” 
E.E.O.C. v. Watkins Motor Lines, Inc., 463 F.3d 436, 442 (6th Cir. 2006) (citing Andrews 
v. Ohio, 104 F.3d 803, 810 (6th Cir. 1997)).1 
 
1 See Tex. Tech Univ. Health Sciences Ctr. – El Paso v. Niehay, 671 S.W.3d 929, 937–38 
& n.27 (Tex. 2023) (collecting cases analyzing the ADA to inform Texas equivalent); 
Lescoe v. Pa. Dept. of Corrections–SCI Frackville, 464 F. App’x 50, 53 n.7 (3d Cir. 
2012) (not precedential) (collecting cases analyzing the ADA and state equivalents); 
Richardson v. Chicago Transit Auth., 926 F.3d 881, 887–88 (7th Cir. 2019) (same); 
BNSF Ry. Co. v. Feit, 281 P.3d 225, 229–30 (Mont. 2012) (same). We have yet to adopt a 
position on whether obesity is an impairment under the ADA. Lescoe, 464 F. App’x at 53 
n.7. 
 
3 
 
The statutory meaning of physical impairment sometimes excludes obesity either 
because it is not an impairment of any kind, or, if it is an impairment, because it does not 
necessarily stem from some underlying abnormality. While we conclude the ALJ’s 
decision regarding Ginder’s obesity was supported by substantial evidence, future cases 
should treat obesity consistent with the text of the benefits statute.  


Francine Ginder v. Commissioner of Social Security

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-30-2025 
Ronald Goodloe v. Warden Lewisburg USP 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Ronald Goodloe v. Warden Lewisburg USP" (2025). 2025 Decisions. 86. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-1170 
__________ 
 
RONALD E. GOODLOE, 
     Appellant 
      
v. 
 
WARDEN LEWISBURG USP 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(M.D. Pa. Civil Action No. 4:23-cv-01247) 
District Judge:  Honorable Matthew W. Brann 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
October 17, 2024 
Before:  KRAUSE, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: January 30, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
  Appellant Ronald Goodloe appeals from the District Court’s denial of his petition 
for habeas corpus pursuant to 28 U.S.C. § 2241.  For the reasons that follow, we will 
affirm the order of the District Court.   
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
Goodloe, a federal inmate confined at the United States Penitentiary in Lewisburg, 
Pennsylvania (“USP-Lewisburg”), is currently serving a 130-month sentence for 
conspiracy to distribute methamphetamine.  On March 7, 2023, a search was conducted 
of the cell Goodloe shares with another inmate.  Corrections officers discovered a paper 
soaked in an unknown substance in the common area of the cell.  Three separate field 
tests were performed on the substance/paper, and each returned a positive result for 
amphetamines.  Goodloe was subsequently charged with Offense Code 113 (Possessing 
Drugs/Alcohol).  
The following day, Goodloe appeared before a Unit Disciplinary Committee 
(“UDC”) and asked for additional testing by “an outside lab.”  D.Ct. ECF No. 12-1 at 8.  
On March 16, 2023, a hearing was held before a Discipline Hearing Officer (“DHO”).  
Goodloe presented no witnesses or evidence, but asserted that he had “asked for the test 
to [be] sent to a lab,” and alleged that his “due process rights were violated.”  Id. at 14.  
Citing the incident report, field test results, and photographs of the substance-soaked 
paper, the DHO concluded that the greater weight of the evidence supported a finding 
that Goodloe committed the charged offense.  Goodloe was sanctioned with the loss of 41 
days of good-conduct time, forfeiture of 148 days of nonvested good-conduct time, 45 
days of disciplinary segregation, and the temporary loss of certain privileges.  Goodloe’s 
administrative appeal of the decision was denied.   
In July 2023, Goodloe filed a habeas petition pursuant to 28 U.S.C. § 2241 
asserting, in very general terms, that his due process and privacy rights were violated by 
the disciplinary proceedings.  He attached documents to his petition relating to the 
3 
 
proceedings, highlighting portions relating to the denial of his request for further 
laboratory testing. The District Court broadly construed Goodloe’s filing to state various 
claims and denied his petition.  See D.Ct. ECF No. 14.  Goodloe filed a timely notice of 
appeal.   
We have jurisdiction pursuant to 28 U.S.C. § 1291.  Goodloe’s due process 
challenge to the disciplinary hearing was properly brought under § 2241 because it 
entailed the loss of good-time credits.  See Queen v. Miner, 530 F.3d 253, 254 n.2 (3d 
Cir. 2008) (per curiam).  We review the District Court’s denial of habeas relief de novo 
and its factual findings for clear error.  Denny v. Schultz, 708 F.3d 140, 143 (3d Cir. 
2013).1   
Federal prisoners have a liberty interest in statutory good-conduct time.  See Wolff 
v. McDonnell, 418 U.S. 539, 557 (1974); see also 18 U.S.C. § 3624(b)(1); Vega v. 
United States, 493 F.3d 310, 317 n.4 (3d Cir. 2007).  A disciplinary hearing that may 
result in the loss of good-conduct time must provide certain due process safeguards to a 
prisoner, including an opportunity to call witnesses and present documentary evidence in 
his own defense.  See Wolff, 418 U.S. at 566.   
The sole issue raised by Goodloe on appeal is that the denial of his requests for 
secondary laboratory testing of the substance laden paper violated his due process rights 
and prevented him from presenting documentary evidence in his defense.  3d Cir. ECF 
 
1  Because Goodloe is a federal prisoner challenging the denial of a § 2241 petition, 
he need not obtain a certificate of appealability to proceed.  See Reese v. Warden Phila. 
FDC, 904 F.3d 244, 246 (3d Cir. 2018).   
4 
 
No. 11 at 3.2  However, while Wolff may entitle Goodloe to present documentary 
evidence in his defense, it does not require the BOP to pay for testing or otherwise 
conduct an investigation on Goodloe’s behalf.  See Spence v. Farrier, 807 F.2d 753, 755-
56 (8th Cir. 1986) (concluding that refusing to allow confirmatory drug testing did not 
violate due process).3   
To the extent Goodloe also asserts that the field test results were insufficient to 
support the DHO’s decision, we disagree.  A prison disciplinary decision will be upheld 
if there is “some evidence” to support the finding.  See Superintendent v. Hill, 472 U.S. 
445, 455-56.  We agree with the District Court that the evidence relied upon by the DHO, 
including the three separate field tests which “repeatedly confirmed the presence of 
amphetamines,” was sufficient to satisfy the “some evidence” standard.  D.Ct. ECF No. 
14 at 6-7.4     
 
2  In support of this assertion, Goodloe relies on Jacquet v. Warden Fort Dix FCI, 
707 F. App’x 124 (3d Cir. 2017) (per curiam).  Leaving aside the fact that that opinion is 
not precedential, that case is distinguishable because Jacquet sought testing at his own 
expense.   
 
3  In a nonprecedential opinion dealing with a prisoner’s request for voice analysis in 
connection with a disciplinary hearing, this Court agreed with the Eighth Circuit’s 
decision in Spence and concluded that a prisoner has no “due process right to have the 
prison find, retain, and present an expert witness” on a prisoner’s behalf.  Garrett v. 
Smith, 180 F. App’x 379, 381 (3d Cir. 2006) (per curiam).   
 
4  Goodloe asserted before the District Court that the presumptive field tests used by 
corrections officers are unreliable, see D.Ct. ECF No. 13 at 4-5, but he failed to offer any 
evidence in support of his conclusory assertion.  While Goodloe has attempted to expand 
the record on appeal as to the issue of reliability, the evidence, even if properly before 
this Court, is unpersuasive.  The articles provided by Goodloe, see 3d Cir. ECF No. 9, 
address false positive results in presumptive field drug test kits generally.  They do not 
address the reliability of any specific test, much less the tests used by corrections officers.  
5 
 
Accordingly, we will affirm the decision of the District Court.5    
 
 
Further, the articles provide no specific information on rates of reliability, noting instead 
that “the true error rate of these tests remains unknown.”  Id. at 3.    
 
5  In light of our disposition, Goodloe’s motion for the appointment of counsel is 
denied. 


Ronald Goodloe v. Warden Lewisburg USP

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-4-2025 
Ronaldo Elias Da Silva v. Attorney General United States of 
America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Ronaldo Elias Da Silva v. Attorney General United States of America" (2025). 2025 Decisions. 182. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/182 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
 
No. 24-1755 
_______________ 
 
RONALDO ELIAS DA SILVA; CRISTINA APARECIDA DE LANA SILVA; 
E.R.D.S.; M.G.D.S., 
  Petitioners 
 
v. 
 
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA. 
  
_______________ 
 
On Petition for Review of a Final Order of the 
Board of Immigration Appeals 
(Nos. A216-983-704, A216-983-705, A216-983-706, A216-983-707) 
Immigration Judge: Jason L. Pope 
_______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a)  
January 28, 2025 
 
Before: SHWARTZ, KRAUSE, and PORTER, Circuit Judges. 
 
(Filed: March 4, 2025) 
_______________ 
 
OPINION∗ 
_______________ 
 
  
 
∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 
precedent. 
2 
 
PORTER, Circuit Judge. 
 Ronaldo Elias da Silva, his wife, and their two children (collectively, the “da 
Silvas”) are Brazilian nationals petitioning for review of their respective final removal 
orders. For the reasons below, we will deny their petitions. 
I 
 The da Silvas allege that, back in Brazil, unknown individuals fired gunshots at 
Ronaldo’s car on May 16, 2021. Ronaldo drove to the police station and filed a report 
complaining about drugs in his neighborhood. Later that day, two armed men showed up 
at the da Silvas’ house and told Ronaldo that he “should not [have] do[ne] that.” 
Administrative Record (“A.R.”) at 163. Armed men also searched for Ronaldo’s daughter 
at her school. Undeterred, Ronaldo filed a second report the next day. The police advised 
Ronaldo to leave the city. The da Silvas fled to another city in Brazil, about an hour-and-
a-half away, and stayed with family for ten days. Ronaldo testified that the armed men 
seemed to stop looking for him while the da Silvas were away. But believing they were 
still in danger, they continued to the United States, arriving on or about May 28, 2021. 
 Removal proceedings against the da Silvas began on October 2, 2021. The da 
Silvas admitted the factual allegations in their respective Notices to Appear and conceded 
removability. The da Silvas filed applications for asylum, withholding of removal, and 
protection under the Convention Against Torture (“CAT”). 
 The Immigration Judge (“IJ”) denied the da Silvas’ requests for relief from 
removal. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision. This 
petition for review followed. 
3 
 
II 
 We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a). 
Venue is proper because the immigration proceedings were completed in Newark, New 
Jersey. 8 U.S.C. § 1252(b)(2). While we review the BIA’s factual findings for substantial 
evidence, we review its legal determinations, including “its legal conclusion that those 
facts did not amount to torture and government acquiescence” under CAT de novo. 
Manuel-Soto v. Att’y Gen., 121 F.4th 468, 472 (3d Cir. 2024). 
III 
A 
 To be eligible for asylum, an applicant “must demonstrate that he is a ‘refugee’ 
within the meaning of 8 U.S.C. § 1101(a)(42).” Chavarria v. Gonzalez, 446 F.3d 508, 
515–16 (3d Cir. 2006). That requires a well-founded fear of persecution on the basis of a 
protected ground—race, religion, nationality, membership in a particular social group, or 
political opinion. 8 U.S.C. § 1101(a)(42). The protected ground must be “an essential or 
principal reason for the persecution.” Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 
(3d Cir. 2015); see also 8 U.S.C. § 1158(b)(1)(B)(i). Persecution means “threats to life, 
confinement, torture, and economic restrictions so severe that they constitute a threat to 
life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993); see also Matter of 
Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). “ ‘[G]enerally harsh conditions shared by 
many other persons’ do not amount to persecution.” Fatin, 12 F.3d at 1240 (quoting 
Acosta, 19 I. & N. Dec. at 222). Where an applicant for asylum establishes past 
4 
 
persecution, a presumption arises that the applicant has a well-founded fear of 
persecution. 8 C.F.R. § 1208.13(b)(1). 
 With this framework in mind, the BIA did not err by concluding that the da Silvas 
are ineligible for asylum. The da Silvas claim membership in the following particular 
social groups: “[i]nformants who cannot get protection from the Brazilian police;” 
“[c]rime victims who cannot get protection from the Brazilian police;” and 
“[w]histleblowers who cannot get protection from the Brazilian police.” Pet’rs’ Opening 
Br. at 13. But since none of those groups “exist independently of the persecution 
suffered,” they are not cognizable. Lukwago, 329 F.3d at 172.  
 The da Silvas argue that their proposed groups exist independently of their 
persecution because “the fact that . . . they can’t get protection from the Brazilian police 
is not the harm.” Pet’rs’ Opening Br. at 13. That argument is unconvincing. As the Court 
in Lukwago suggested, the prohibition against defining a “particular social group” with 
reference to the group’s shared experience of persecution is substantive: it avoids a 
circularity that, if permitted, would end-run Congress’ judgment that asylum is only 
available to those that have been persecuted on account of certain grounds. 8 U.S.C. 
§ 1101(a)(42)(A); Lukwago, 329 F.3d at 172. Reframing a group’s shared experience to 
be the inability of the group to be protected from persecution, as opposed to the 
persecution itself, does nothing to address that concern. 
 The da Silvas’ applications for asylum based on political opinion likewise falter. 
For asylum claims premised on political opinion, it is essential that the persecutor 
attribute a political opinion to the applicant, otherwise persecution cannot be on account 
5 
 
of opinion. Guzman Orellana v. Att’y Gen., 956 F.3d 171, 180 (3d Cir. 2020). The da 
Silvas argue that the BIA erred in determining that they do not have a well-founded fear 
of persecution on the basis of their pro-whistleblowing political opinion. Although the 
BIA recognized that “pro-whistleblowing” is a cognizable political opinion, it concluded 
that the da Silvas had not demonstrated persecution on the basis of an actual or imputed 
political opinion. Whether persecution has been on the basis of a political opinion is a 
factual determination that we review for substantial evidence. See Lukwago, 329 F.3d at 
176. Asked at his hearing whether Ronaldo or his wife ever “publicly express[ed] any 
political opinion in Brazil, or any anti-crime or anti-drug political opinion in Brazil,” 
Ronaldo answered, “[n]o.” A.R. at 175. In light of this testimony and in the absence of 
any evidence to the contrary, we cannot say that the BIA erred. 
B 
 Because the standard for withholding of removal is higher than that for asylum, 
applicants ineligible for asylum are necessarily also ineligible for withholding of 
removal. Lukwago, 329 F.3d at 182. Accordingly, the BIA did not err in denying the da 
Silvas’ requests for withholding of removal.  
C 
 The standard for protection under CAT requires applicants to show “that it is more 
likely than not that he or she would be tortured if removed.” 8 C.F.R. § 1208.16(c)(2). 
“Torture” under CAT “is defined as any act by which severe pain or suffering, whether 
physical or mental, is intentionally inflicted on a person . . . by, or at the instigation of, or 
with the consent or acquiescence of, a public official.” 8 C.F.R. § 1208.18(a)(1). Officials 
6 
 
acquiesce when they are “willfully blind to torturous conduct and breach their legal 
responsibility to prevent it,” or collude with the torturers. Silva-Rengifo v. Att’y Gen., 473 
F.3d 58, 70 (3d Cir. 2007). The da Silvas argue that the BIA erred in concluding that they 
failed to establish that it is more likely than not that they will be tortured if removed to 
Brazil. We cannot say the BIA erred in concluding that the da Silvas did not show that 
they would be subject to torture, or that Brazilian authorities would acquiesce to such 
treatment. Although Ronaldo believed his pursuers would try to kill him if he returned to 
Brazil, it is the BIA’s and IJ’s prerogative to disagree with applicants on the basis of 
other evidence in the record, such as the fact that when the da Silvas fled to a nearby city, 
the armed men “stop[ped] looking for [them].” A.R. 166. Moreover, the police here were 
receptive to Ronaldo’s plight, and there is no evidence that public officials were 
colluding with the da Silvas’ tormentors. Indeed, Ronaldo testified that the Brazilian 
police took multiple reports. In light of this testimony and without evidence suggesting 
otherwise, we again cannot say that the BIA erred. 
* * * 
Accordingly, we will deny the da Silvas’ petitions. 


Ronaldo Elias Da Silva v. Attorney General United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-4-2025 
Dawn Keefer v. President United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Dawn Keefer v. President United States of America" (2025). 2025 Decisions. 183. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1716 
____________ 
 
DAWN KEEFER; TIMOTHY BONNER; BARRY JOZWIAK; BARBARA GLEIM; 
JOSEPH HAMM; WENDY FINK; ROBERT KAUFFMAN; STEPHANIE 
BOROWICZ; DONALD (BUD) COOK; PAUL (MIKE) JONES; JOSEPH D’ORSIE; 
CHARITY KRUPA; LESLIE ROSSI; DAVID ZIMMERMAN; ROBERT 
LEADBETER; DANIEL MOUL; THOMAS JONES; DAVID MALONEY; TIMOTHY 
TWARDZIK; DAVID ROWE; JOANNE STEHR; AARON BERNSTINE; KATHY 
RAPP; REPRESENTATIVE MARK GILLEN; REPRESENTATIVE JILL COOPER; 
REPRESENTATIVE MARLA BROWN; SENATOR CRIS DUSH, 
      All Pennsylvania Legislators, 
                Appellants 
 
v. 
 
PRESIDENT UNITED STATES OF AMERICA; GOVERNOR OF PENNSYLVANIA; 
SECRETARY COMMONWEALTH OF PENNSYLVANIA; DEPUTY SECRETARY 
ELECTIONS COMMISSIONS; UNITED STATES OF AMERICA; UNITED STATES 
DEPARTMENT OF AGRICULTURE; SECRETARY; UNITED STATES 
DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY 
PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES; UNITED STATES 
DEPARTMENT OF STATE; SECRETARY PENNSYLVANIA DEPARTMENT OF 
STATE; UNITED STATES DEPARTMENT OF HOUSING AND URBAN 
DEVELOPMENT; UNITED STATES DEPARTMENT OF ENERGY; SECRETARY; 
UNITED STATES DEPARTMENT OF EDUCATION; SECRETARY UNITED 
STATES DEPARTMENT OF EDUCATION 
___________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. No. 1:24-cv-00147) 
District Judge:  Honorable Jennifer P. Wilson 
___________ 
 
Argued:  January 16, 2025 
___________ 
 
Before:  PHIPPS, FREEMAN, and CHUNG, Circuit Judges 
 
2 
(Filed: March 4, 2025) 
___________ 
 
Erick G. Kaardal   [ARGUED] 
Elizabeth A. Nielsen 
MOHRMAN KAARDAL & ERICKSON 
150 S 5th Street, Suite 3100 
Minneapolis, MN 55402  
 
 Counsel for Appellants 
 
McKaye L. Neumeister  [ARGUED] 
Jeffrey E. Sandberg 
Daniel Tenny 
UNITED STATES DEPARTMENT OF JUSTICE 
CIVIL DIVISION 
Room 7231 
950 Pennsylvania Avenue NW 
Washington, DC 20530 
 
 Counsel for Appellee President United States of America 
 
Jacob B. Boyer   [ARGUED] 
OFFICE OF ATTORNEY GENERAL OF PENNSYLVANIA 
OFFICE OF GENERAL COUNSEL 
30 North Third Street, Suite 200 
Harrisburg, PA 17101 
 
 Counsel for Appellee Governor of Pennsylvania 
 
Robert J. Muise 
THE MUISE LAW GROUP 
P.O. Box 131098 
Ann Arbor, MI 48113 
 
 Counsel for Amici Members of Congress in Support of Appellants 
 
3 
Thomas E. Breth 
Thomas W. King, III 
DILLON MCCANDLESS KING COULTER & GRAHAM 
128 W Cunningham Street 
Butler, PA 16001 
 
Counsel for Amici States of West Virginia, Arkansas, Indiana, Louisiana, 
Mississippi, Montana, New Hampshire, and Wyoming in Support of Appellants 
 
David J. Craig 
FOUNDATION FOR GOVERNMENT ACCOUNTABILITY 
15275 Collier Boulevard, Suite 201 
Naples, FL 53103 
 
Counsel for Amicus Foundation for Government Accountability in Support of 
Appellants 
 
___________ 
 
OPINION* 
___________ 
PHIPPS, Circuit Judge. 
Two clauses in the Constitution confer certain powers regarding the regulation of 
federal elections to state legislatures.  The Elections Clause gives initial responsibility to 
state legislatures over the regulation of elections for the United States Congress: 
The Times, Places and Manner of holding Elections for Senators and 
Representatives, shall be prescribed in each State by the Legislature thereof; 
but the Congress may at any time by Law make or alter such Regulations, 
except as to the Places of chusing Senators. 
U.S. Const. art. I, § 4, cl. 1.  The Electors Clause allows state legislatures to direct the 
manner of appointing electors to the Electoral College: 
Each State shall appoint, in such Manner as the Legislature thereof may 
direct, a Number of Electors, equal to the whole Number of Senators and 
Representatives to which the State may be entitled in the Congress: but no 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
4 
Senator or Representative, or Person holding an Office of Trust or Profit 
under the United States, shall be appointed an Elector. 
U.S. Const. art. II, § 1, cl. 2.  
Consistent with those clauses and the Pennsylvania Constitution,1 the Pennsylvania 
General Assembly has regulated voter registration in the Commonwealth for elections to 
both federal and state offices.  In 2002, the General Assembly mandated the rejection of 
incomplete or inconsistent voter-registration applications if, after reasonable efforts, 
necessary information could not be ascertained.  See 25 Pa. Cons. Stat. § 1328(b)(2)(i) 
(2002) (amended 2020).  Twenty years later, in 2022, the General Assembly limited voter-
registration expenditures within the Commonwealth to funding from lawful governmental 
appropriations – those “derived from taxes, fees and other sources of public revenue.”  
25 Pa. Stat. § 2607(a).  Additionally, in 2023, the Pennsylvania Senate’s State Government 
Committee considered, but did not bring to the floor, Senate Bill 40, which would have 
allowed automatic voter registration throughout the Commonwealth.  See S.B. 40, 
207th Gen. Assemb., Reg. Sess. (Pa. 2023). 
Twenty-seven members of the Pennsylvania General Assembly allege that on three 
occasions, governmental actors – other than Congress2 – have also regulated elections in 
Pennsylvania.  In 2018, the Pennsylvania Department of State instructed counties not to 
reject voter registrations solely based on a mismatch between an applicant’s presented 
 
1 Pa. Const. art. VII, § 1 (“Every citizen 21 years of age, possessing the following 
qualifications, shall be entitled to vote at all elections subject, however, to such laws 
requiring and regulating the registration of electors as the General Assembly may enact.”); 
cf. U.S. Const. amend. XXVI (“The right of citizens of the United States, who are eighteen 
years of age or older, to vote shall not be denied or abridged by the United States or by any 
State on account of age.”). 
2 Cf. U.S. Const. art. I, § 4, cl. 1 (providing Congress with ultimate authority over the 
regulation of congressional elections except with respect “to the Places of chusing of 
Senators”); U.S. Const. amend. XVII (requiring the election of Senators “by the people” 
of each state qualified to vote for “the most numerous branch of the State legislatures”).   
5 
driver’s license number or Social Security number and the corresponding numbers for that 
applicant in state or federal databases.  On March 7, 2021, President Joseph R. Biden issued 
an executive order directing the “head of each [federal] agency [to] evaluate ways . . . [to] 
promote voter registration” throughout the country, and several federal agencies took 
affirmative action in response to that order.  Exec. Order No. 14019, Promoting Access to 
Voting, 86 Fed. Reg. 13623, 13623 (Mar. 7, 2021).3  And on September 19, 2023, even 
though the General Assembly had not enacted a similar proposal in Senate Bill 40, 
Pennsylvania Governor Josh Shapiro announced that automatic voter registration would be 
implemented for driver’s license and state ID card applicants in Pennsylvania Department 
of Transportation centers. 
The twenty-seven state legislators believe that those actions infringe on the General 
Assembly’s constitutional prerogative over the regulation of federal elections in 
Pennsylvania.  On February 16, 2024, they filed an amended complaint, suing President 
Biden, the United States, six federal agencies, their heads, Governor Shapiro, and two state 
officials, in the United States District Court for the Middle District of Pennsylvania.  The 
defendants moved to dismiss on several grounds, and the District Court dismissed the case 
based on the legislators’ lack of Article III standing.  See Keefer v. Biden, 725 F. Supp. 3d 
491, 494 (M.D. Pa. 2024).  Through a timely notice of appeal of that final decision, the 
legislators invoked this Court’s appellate jurisdiction, and they now contest that ruling.  See 
28 U.S.C. § 1291.  On de novo review, we will affirm the judgment of the District Court 
for the reasons below. 
 
3 On January 20, 2025, President Donald J. Trump issued an Executive Order rescinding 
President Biden’s Executive Order 14019. See Exec. Order No. 14148, Initial Rescissions 
of Harmful Executive Orders and Actions, 90 Fed. Reg. 8237, 8238 (Jan. 20, 2025). 
6 
A party seeking to invoke the limited jurisdiction of a federal court bears the burden 
of establishing Article III standing.  See Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).  
To do so, a plaintiff must make three showings: (i) an injury-in-fact that is concrete, 
particularized, and actual or imminent; (ii) fair traceability between the injury-in-fact and 
the defendant’s challenged conduct; and (iii) the likely redressability of the injury-in-fact 
through a favorable judicial decision.  See Summers v. Earth Island Inst., 555 U.S. 488, 
493 (2009). 
To meet that burden, the legislators assert an individual injury derived from the loss 
of the General Assembly’s institutional power to regulate federal elections in Pennsylvania.  
As a benchmark, no party disputes that if the General Assembly would have initiated this 
suit, then it would satisfy the elements for Article III standing.  See Ariz. State Legislature 
v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 803–04 (2015) (concluding that both 
houses of the Arizona State Legislature had standing to challenge the transfer of its federal 
electoral regulatory power to an independent commission created by a citizen initiative).  
But the General Assembly is not a plaintiff in this suit – the plaintiffs are twenty-seven 
legislators.  And under this Court’s binding precedent, “individual legislators lack standing 
to assert institutional injuries belonging to the legislature as a whole.”  Yaw v. Del. River 
Basin Comm’n, 49 F.4th 302, 311 (3d Cir. 2022); see also Raines v. Byrd, 521 U.S. 811, 
821 (1997) (holding that individual members of Congress lack standing to sue to protect 
the interests of Congress); cf. Va. House of Delegates v. Bethune-Hill, 587 U.S. 658, 664 
(2019) (holding that one house of a state’s bicameral legislature that was not otherwise 
authorized to litigate on behalf of the state lacked standing to defend the constitutionality 
of state legislation).4 
 
4 The legislators dispute this conclusion based on Coleman v. Miller, 307 U.S. 433 (1939).  
That case involved a proposed constitutional amendment that was pending ratification “by 
7 
Without the ability to rely on the institutional injury to the General Assembly as a 
basis for standing, the only remaining grievance that the legislators assert is an interest that 
governmental officials follow the Constitution.5  But the injury-in-fact element requires a 
particularized injury, see Spokeo, 578 U.S. at 339, and without more, an interest in the 
constitutional administration of government is “a nonjusticiable ‘general interest common 
to all members of the public,’” Gill v. Whitford, 585 U.S. 48, 68 (2018) (quoting Ex parte 
Levitt, 302 U.S. 633, 634 (1937) (per curiam)); see also Valley Forge Christian Coll. v. 
Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 482–83 (1982) 
(“[C]laims of standing predicated on ‘the right, possessed by every citizen, to require that 
the Government be administered according to law’ . . . amount to little more than . . . 
‘generalized grievances about the conduct of government.’” (first quoting Baker v. Carr, 
369 U.S. 186, 208 (1962); and then quoting Flast v. Cohen, 392 U.S. 83, 106 (1968))); 
Russell v. DeJongh, 491 F.3d 130, 135 (3d Cir. 2007) (“[O]nce a bill has become law, a 
 
the Legislatures of three fourths of the several States,” U.S. Const. art. V, and individual 
legislators from Kansas claimed that their votes against ratification had “been overridden 
and virtually held for naught,” Coleman, 307 U.S. at 438, because the Lieutenant Governor 
participated in and cast the tie-breaking vote for Kansas with respect to that proposed 
constitutional amendment, see id. at 446–47.  Here, however, the legislators do not 
challenge the process for voting on any piece of legislation; instead, they claim that other 
governmental actors have infringed on the rights conferred upon state legislatures by the 
Constitution. Binding precedent, however, precludes Article III standing for legislators 
who sue individually to vindicate the institutional interests of a legislature.  See Yaw, 
49 F.4th at 311; see also Raines, 521 U.S. at 821, 824. 
5 In District Court, the legislators pursued a theory of candidate standing.  See, e.g., Davis 
v. FEC, 554 U.S. 724, 734–35 (2008) (holding candidate had suffered an injury in the form 
of increased campaign expenditures from a law that would “allow[] his opponents to 
receive contributions on more favorable terms”); Belitskus v. Pizzingrilli, 343 F.3d 632, 
641 (3d Cir. 2003) (suggesting that a law’s impact “on [a] candidate’s campaign strategy 
and allocation of resources” may be “sufficient to satisfy the requirements of Article III” 
standing (citing Becker v. FEC, 230 F.3d 381, 386–87 (1st Cir. 2000))).  They do not press 
that argument on appeal.   
8 
legislator’s interest in seeing that the law is followed is no different from a private citizen’s 
general interest in proper government.”). 
For these reasons, the legislators have failed to establish Article III standing to 
pursue claims based on institutional injury to the Pennsylvania General Assembly, and we 
will affirm the judgment of the District Court. 


Dawn Keefer v. President United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-7-2025 
Carl Rodgers v. Pennsylvania State Police 
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"Carl Rodgers v. Pennsylvania State Police" (2025). 2025 Decisions. 188. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1759 
____________ 
 
CARL E. RODGERS, 
                           Appellant 
                                       
v. 
 
PENNSYLVANIA STATE POLICE; JEFFREY STINE; 
DEAN SHIPE; SCOTT DENISCH; SEAN MOYER; 
MARK MAGYAR; JOHN DOES 
____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(District Court No. 1:20-cv-02115) 
District Judge:  Honorable Sylvia H. Rambo 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
January 16, 2025 
____________ 
 
Before:  PHIPPS, FREEMAN, and CHUNG, Circuit Judges 
 
(Filed: March 7, 2025) 
____________ 
 
OPINION1 
____________ 
CHUNG, Circuit Judge. 
 
1 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does 
not constitute binding precedent. 
2 
 
A grand jury’s issuance of a presentment or indictment creates a presumption of 
probable case.  To succeed on a malicious prosecution claim, a plaintiff must overcome 
that presumption.  Carl Rodgers argues that the District Court erred in granting summary 
judgment to the defendants because he presented sufficient evidence to overcome that 
presumption.  We disagree and will affirm. 
I. BACKGROUND2 
 
On April 23, 1983, Debra Rodgers (“Debra”) went missing.  That same day, her 
husband, Carl Rodgers (“Rodgers”), called Debra’s mother to inquire about Debra’s 
whereabouts.  This prompted Debra’s family to drive to the couple’s farm and begin 
searching for her.  The next morning, Debra’s body was located in the woods off a 
remote road.  Her body had visible signs of trauma, including deep slashes across both 
wrists, indicative of suicide.  A knife and sheath bearing the name “Carl” were recovered 
nearby.  Rodgers was investigated, and a grand jury was convened to consider charging 
him in connection with Debra’s death.  The grand jury was not ultimately requested to 
issue a presentment at that time.   
Over thirty years later, a Pennsylvania State Police task force met to discuss the 
investigation and recommended resuming it.  A grand jury again convened, and this time, 
issued a presentment recommending that the Commonwealth charge Rodgers with 
murder.3  The grand jury found probable cause that Rodgers murdered Debra and that her 
 
2 Because we write for the parties, we recite only facts pertinent to our decision. 
3 Under Pennsylvania law, “[g]rand juries issue both indictments and presentments. 
With indictments, the grand jury sets forth felony charges asserted by the government 
 
3 
 
wrists had been slashed to make her death look like a suicide.  Accordingly, Rodgers was 
charged and later tried for murder.  After deliberating for only an hour, the jury acquitted 
Rodgers.   
Rodgers then brought this 42 U.S.C. § 1983 action against the Pennsylvania State 
Police and various officers alleging malicious prosecution under the Fourth Amendment 
and other causes of action.  After discovery, the defendants moved for summary 
judgment.  The District Court granted summary judgment on the malicious prosecution 
claim, holding that the evidence, viewed in the light most favorable to Rodgers, did not 
undermine defendants’ probable cause to prosecute Rodgers, and Rodgers failed to show 
the required malice to succeed on a malicious prosecution claim.  Rodgers timely 
appealed.   
II. DISCUSSION4 
 
 
after finding probable cause that a person under investigation has committed the alleged 
crime.  With presentments, the grand jury recommends for prosecution charges it has 
initiated, or it issues reports condemning official misconduct not rising to the level of a 
criminal offense.”  Commonwealth v. Slick, 639 A.2d 482, 484 n.1 (Pa. Super. Ct. 1994); 
see also 42 Pa. Cons. Stat. § 4551(a) (discussing presentments). 
4  The District Court possessed subject matter jurisdiction pursuant to 28 U.S.C. 
§ 1331.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  Our review of the District 
Court’s summary judgment decision is plenary.  See Barna v. Bd. of Sch. Dirs. of Panther 
Valley Sch. Dist., 877 F.3d 136, 141 (3d Cir. 2017).  Summary judgment is appropriate 
when the movant “shows that there is no genuine dispute as to any material fact and the 
movant is entitled to judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  Although the 
nonmovant’s evidence “is to be believed, and all justifiable inferences are to be drawn in 
his favor in determining whether a genuine factual question exists,” summary judgment 
should be granted “unless there is sufficient evidence for a jury to reasonably find for the 
nonmovant.”  Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011) 
(internal quotation marks omitted). 
4 
 
To succeed on a Fourth Amendment malicious prosecution claim, a plaintiff must 
show that: 
(1) the defendant initiated a criminal proceeding; (2) the criminal 
proceeding ended in [plaintiff’s] favor; (3) the defendant initiated the 
proceeding without probable cause; (4) the defendant acted maliciously 
or for a purpose other than bringing the plaintiff to justice; and (5) the 
plaintiff suffered deprivation of liberty consistent with the concept of 
seizure as a consequence of a legal proceeding.   
 
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).  Under this standard, “[a] finding of 
probable cause is … a complete defense” to a claim of malicious prosecution.  Goodwin 
v. Conway, 836 F.3d 321, 327 (3d Cir. 2016). 
Here, Rodgers was charged as recommended by a grand jury’s presentment.  “[A] 
grand jury indictment or presentment constitutes prima facie evidence of probable cause 
to prosecute ….”  Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989).  Thus, a presentment 
creates a “presumption” of probable cause.  Xi v. Haugen, 68 F.4th 824, 841 (3d Cir. 
2023).  This “presumption may be rebutted by a plausible allegation that the indictment 
was ‘procured by fraud, perjury or other corrupt means.’”  Id. (quoting Rose, 871 F.3d at 
353).   
The presentment contains considerable inculpatory evidence that supports a 
finding of probable cause.  Nonetheless, Rodgers attempts to show the use of “fraud, 
perjury or other corrupt means” by arguing that the defendants failed to present 
exculpatory or potentially exculpatory evidence to the grand jury.  This argument fails for 
two reasons.  First, Rodgers’ argument is based on speculation as to what forensic 
examination would have revealed had certain items of evidence been retained.  These 
5 
 
assertions do not create a genuine issue that the evidence was exculpatory.  Second, we 
have previously held that when a grand jury presentment contains facts supporting 
probable cause, a failure to provide exculpatory evidence to the grand jury does not 
demonstrate that the presentment was procured by fraud, perjury or other corrupt means.  
See Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 363 (3d Cir. 2003) (citing 
United States v. Williams, 504 U.S. 36, 51 (1992)).5  In sum, Rodgers fails to establish a 
genuine issue that the specified evidence was exculpatory or that the grand jury’s 
presentment was obtained by fraud, perjury or other corrupt means. 
Rodgers also points to an email chain including two of the defendants that, 
according to Rodgers, “appears to discuss ‘making-up’ autopsy photos.”  Rodgers Br. 14.    
However, a review of the whole email does not produce a genuine dispute that probable 
cause was lacking, and the District Court properly rejected Rodgers’ argument.  The 
email discusses making enlarged versions of various photos and diagrams to potentially 
be “mounted on board,” and presumably used at trial.  J.A. 148.  The email then states, “I 
can make one up of the autopsy photos also if you think you want them.”  Id.  Clearly, 
 
5 Rodgers attempts to rebut this presumption by showing that the 
officer “knowingly and deliberately, or with a reckless disregard for the truth, made 
materially false statements or omissions” Xi, 68 F.4th at 841 (emphasis added) (brackets 
omitted) (quoting Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)).  As Rodgers 
concedes, this language “concerns a search warrant,” but he “submit[s] the rebuttal also 
applies to Grand Jury presentments.”  Rodgers Br. 16.  This broader application, 
however, is foreclosed by our holding in Camiolo.  334 F.3d at 363.  While other circuits 
have held that a failure to disclose exculpatory evidence to a grand jury can rebut the 
presumption of probable cause founded upon a grand jury’s indictment, see, e.g., Harris 
v. Town of Southern Pines, 110 F.4th 633, 643–44 (4th Cir. 2024), Camiolo governs our 
analysis and it forecloses Rodgers’ argument. 
6 
 
this was an offer to create an enlarged version of the existing autopsy photos.  Thus, the 
District Court properly rejected Rodgers’ proposed reading as unreasonable.  See Halsey 
v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (“In considering a summary judgment 
motion, a court must view the evidence in the light most favorable to the non-moving 
party and give that party the benefit of all reasonable inferences that can be drawn from 
the evidence.” (emphasis added)).  In any event, this email was sent months after the 
grand jury issued its presentment.  Therefore, the email does not establish a genuine 
dispute that the presentment was “procured by fraud, perjury or other corrupt means.”  
Rose, 871 F.2d at 353. 
Rodgers also alleges various inaccuracies in the Pennsylvania State Police crime 
report and grand jury presentment.  However, Rodgers fails to show that that any alleged 
misstatements in the report were knowingly false or were material to the grand jury’s 
finding of probable cause.  Id.  Rodgers also takes issue with the strategies the police 
used to investigate him.  However, none of the purported deficiencies in the investigation 
negate the evidence supporting the grand jury’s finding of probable cause.  Id. 
III. CONCLUSION 
 
For the forgoing reasons, we will affirm the judgement of the District Court.6 
 
6 Because we can affirm on the basis of probable cause alone, we need not reach the 
defendants’ immunity arguments or arguments related to the involvement of particular 
defendants, nor do we reach the issue of whether the defendants acted with the required 
malice to support a malicious prosecution claim. 


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