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Veterans Guardian VA Claim Consulting LLC v. Matthew J. Platkin

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-1-2025 
Kayla Williams v. Pennsylvania State University 
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Recommended Citation 
"Kayla Williams v. Pennsylvania State University" (2025). 2025 Decisions. 254. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 23-3180 
___________ 
 
KAYLA WILLIAMS, 
    Appellant 
v. 
 
PENNSYLVANIA STATE UNIVERSITY; BRENDAN PRAWDZIK in his individual 
capacity; LAUREN LANGFORD in her individual capacity; KAREN FELDBAUM in 
her individual capacity; YVONNE GAUDELIUS in her individual capacity 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(M.D. Pa. Civil Action No. 4:20-cv-00298) 
District Judge: Honorable Matthew W. Brann 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
March 28, 2025 
 
Before:  RESTREPO, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: April 1, 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 
 
Pro se appellant Kayla Williams appeals the District Court’s grant of summary 
judgment for defendants on her claims stemming from her time as a student at 
Pennsylvania State University (“Penn State”).  For the reasons that follow, we will affirm 
the District Court’s judgment. 
I. 
 Williams’ claims are based primarily on three sets of facts from after she 
matriculated at Penn State in 2016.1  First, in January 2017, Williams made a report of 
sexual assault to 911 and Penn State’s Office of Sexual Misconduct Prevention and 
Response (“OSMPR”).  In October 2017, Williams requested a Title IX investigation, 
and in April 2018, OSMPR issued an investigative report.  Williams subsequently posted 
criticism about the investigation on Twitter.  After an internal Title IX hearing against 
one alleged perpetrator, the panel found the student not responsible.  Appeals officer Dr. 
Yvonne Gaudelius denied Williams’ appeal.  Karen Feldbaum, who worked for the 
Office of Student Conduct, served as the case manager for the Title IX case. 
 Next, in the fall of 2019, Williams received a failing grade in a writing course.  
Williams argued that professor Brandon Prawdzik retaliated against her by failing her 
after she filed a complaint of racism against him with the Affirmative Action Office mid-
way into the semester.  Prawdzik maintained that a failing grade was appropriate because 
before Williams had even filed her complaint, she had already missed too many classes 
without providing supporting documentation to excuse the absences, which violated 
 
1  Because we write primarily for the parties, we will recite only the facts necessary for 
this discussion.  These facts are undisputed unless otherwise noted. 
3 
 
Prawdzik’s attendance policy. 
 Finally, in October 2019, Williams’ roommate, A.B., requested a no-contact order 
from the University against Williams, alleging that she had been threatened and harassed, 
and that Williams had used her personal information without permission.  Later that 
month, in an unrelated incident, Williams was cited for harassment after she struck a Lyft 
driver named John Petrulich.  There was video evidence of the incident.  Williams was 
eventually convicted of harassment and her conviction was affirmed on appeal. 
 Laura Langford, Associate Director of the Office of Student Conduct, contacted 
Williams in November 2019 to discuss A.B.’s complaint, and Williams requested to meet 
after the holidays.  In the interim, Petrulich contacted Penn State regarding his incident 
with Williams.  Langford scheduled a meeting with Williams to discuss both issues, but 
Williams did not attend.  Langford scheduled another meeting for January 24, and 
informed Williams that the meeting was “a mandatory appointment.”  Williams did not 
attend the January 24 meeting, and Langford recommended that Williams be charged 
with “harming or attempting to harm another” and “harassment by 
communication.”  Langford then scheduled another meeting, informing Williams that her 
failure to respond to the charges by a certain deadline would result in potential sanctions 
without her participation.  The proposed sanctions were suspension and a requirement 
that she complete counseling to return.  On January 31, 2020, when Williams did not 
respond, she was told that those sanctions would be implemented. 
 Williams contested this outcome, after which she received another opportunity to 
respond.  On February 13, 2020, Williams received a hearing notice, scheduling a 
4 
 
University Conduct Board (“UCB”) hearing for February 21, 2020.  Langford contacted 
A.B. and Petrulich to request that they appear as witnesses, but both declined, although 
Petrulich provided a written statement. 
 Williams, through counsel, initiated this federal lawsuit on February 19, 2020.  
Her UCB hearing took place on February 21, as planned.  Williams spoke at the hearing 
regarding both incidents and had an advisor available to consult with her.  She was 
offered opportunities to take breaks, which she declined.  Langford presented the case 
against Williams during the hearing but was not part of the deliberations panel.  The UCB 
issued a written opinion on February 28, 2020, recommending that Williams be found 
responsible for both charges and suspended.  The suspension was upheld by Gaudelius 
after Williams appealed. 
 In April 2020, Williams filed an amended complaint naming Penn State, Langford, 
Feldbaum, and Gaudelius as defendants.2  She brought eight claims, two of which were 
dismissed on defendants’ motion.3  Her remaining claims alleged: (1) Title VI retaliation 
and discrimination based on issues with her professors; (2) due process violations 
regarding her suspension hearing; and (3) First Amendment retaliation based on her 
 
2  Williams named Prawzdik as an additional defendant in her amended complaint but 
later voluntarily dismissed him.  She also included claims against Professor Michelle 
Yarwood in her original complaint but dropped her as a defendant in her amended 
complaint.  To the extent that Williams takes issue with her counsel’s voluntary dismissal 
of those claims, her counsel’s conduct is not a ground for relief on appeal.  See Kushner 
v. Winterthur Swiss Ins. Co., 620 F.2d 404, 408 (3d Cir. 1980). 
3  In her appellate brief, Williams does not discuss the claims that were dismissed.  
Accordingly, she has forfeited review of those issues.  See In re Wettach, 811 F.3d 99, 
115 (3d Cir. 2016) (explaining that any issue an appellant fails to develop in an opening 
brief is forfeited). 
5 
 
suspension and the denial of her Title IX claim.  The District Court granted summary 
judgment for defendants.  Williams timely appealed, pro se. 
II. 
We have jurisdiction pursuant to 28 U.S.C. § 1291.  We exercise plenary review 
over the District Court’s summary judgment ruling.  See Blunt v. Lower Merion Sch. 
Dist., 767 F.3d 247, 265 (3d Cir. 2014).  Summary judgment is proper “if 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).  A genuine dispute of material fact 
exists if the evidence is sufficient for a reasonable factfinder to return a verdict for the 
nonmoving party.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 
III. 
After careful review of the parties’ arguments and the lengthy record in this case, 
we agree that summary judgment was appropriately granted for defendants.  First, 
Williams claimed that certain professors discriminated and retaliated against her.  She 
argued that Prawdzik retaliated against her by giving her a failing grade after she 
complained of racial discrimination.  However, Williams did not establish a prima facie 
case of retaliation, as the evidence did not show a causal connection between her 
complaint and the grade she received.  See Canada v. Samuel Grossi & Sons, 49 F.4th 
340, 346 (3d Cir. 2022) (setting out the elements of a prima facie case of retaliation under 
the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973)); NAACP v. Med. Ctr., Inc., 657 F.2d 1322, 1333 (3d Cir. 1981) (en banc) 
(applying McDonnell Douglas in the Title VI context); see also Peters v. Jenney, 327 
6 
 
F.3d 307, 320 (4th Cir. 2003) (setting out the elements of Title VI retaliation).  Rather, 
Williams had already missed so many classes that she was in danger of failing the course 
by the time she filed her complaint, and her brief does not address either the work she 
missed or her attendance issues, which the District Court described in detail.4   
Williams also abandoned her Title VI discrimination claim involving a different 
professor by failing to make arguments in support of it in the District Court.  She does not 
discuss this claim in her brief and has thus forfeited it on appeal.  See In re Wettach, 811 
F.3d 99, 115 (3d Cir. 2016). 
Next, Williams maintained that Penn State deviated from its policies during her 
suspension proceedings and hearing, violating her due process rights.5  She argued that: 
(1) she was not given adequate notice of the charges against her; (2) she could not speak 
with her advisor during her hearing; (3) she could not cross-examine witnesses; and (4) 
Gaudelius should not have been part of her suspension proceedings.6 
 
4  Williams also argues that the professor used an offensive term at his deposition as 
proof that he retaliated against her, but she does not cite to the record, and we see no 
reference to this term in his deposition transcript. 
5  In the District Court, Williams also argued that Penn State’s policies were facially 
unconstitutional.  Because she does not discuss this claim in her appellate brief, it is 
forfeited.  See Wettach, 811 F.3d at 115. 
6  Williams argued before the District Court that she was denied a pre-hearing meeting, 
but she does not discuss this issue in her brief, so we do not address it.  See Wettach, 811 
F.3d at 115.  Additionally, Williams mentions in her brief that she should have been able 
to present unidentified witnesses on her behalf and discusses an individual whom she 
believes had a conflict of interest in her case, but she did not raise these issues in the 
District Court.  Absent exceptional circumstances (which are not present here), we do not 
consider new issues raised for the first time on appeal.  See Jenkins v. Superintendent of 
Laurel Highlands, 705 F.3d 80, 88 n.12 (3d Cir. 2013). 
7 
 
“To prevail on a procedural due process claim, a litigant must show (1) that the 
state deprived him of a protected interest in life, liberty, or property and (2) that the 
deprivation occurred without due process of law.”  Burns v. Pa. Dep’t of Corr., 544 F.3d 
279, 285 (3d Cir. 2008).  Due process, which is “flexible and calls for such procedural 
protections as the particular situation demands,” fundamentally requires “the opportunity 
to be heard at a meaningful time and in a meaningful manner.”  Mathews v. Eldridge, 424 
U.S. 319, 333-34 (1976) (internal quotation marks and citations omitted). 
We agree with the District Court’s thorough analysis on this claim.  Williams was 
given sufficient written notice of the charges and proposed sanctions against her, with 
incident dates and descriptions, well in advance of her hearing.  She also had an advisor 
present during her hearing, and the record shows that she declined opportunities for 
breaks to speak with her advisor or to meet with her advisor outside of the hearing room. 
Although neither A.B. nor Petrulich was present at her hearing, Langford 
requested their presence, and Penn State had no mechanism to require their attendance.  
Both stated that they feared attending the hearing because of their experiences with 
Williams.  Although Williams could not cross-examine them, she testified about her 
experience of each incident and provided her own evidence.  The hearing panel evaluated 
evidence against Williams other than the accounts of A.B. and Petrulich, including 
Williams’ documents. 
8 
 
Williams contended that Gaudelius had a conflict of interest and should not have 
been involved in her case.7  Williams believes that this bias arose out of her involvement 
in Williams’ Title IX case.  However, this fact alone is not evidence of bias against her, 
and Williams does not point to any record evidence to suggest that Gaudelius’ prior 
decision affected the outcome of Williams’ disciplinary appeal.  See In re Seidman, 37 
F.3d 911, 925 (3d Cir. 1994) (explaining that administrative decisionmakers are 
presumed to be unbiased, and that evidence of “actual bias or a likelihood of bias” is 
required to support a due process claim). 
Williams next claimed that defendants retaliated against her by suspending her 
after she initiated this lawsuit.  She also claimed that, after she posted about the Title IX 
investigation on Twitter, defendants retaliated against her by rejecting her Title IX claim.  
To prevail on a First Amendment retaliation claim, Williams had to establish: “(1) 
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of 
ordinary firmness from exercising his constitutional rights, and (3) a causal link between 
the constitutionally protected conduct and the retaliatory action.”  See Mirabella v. 
Villard, 853 F.3d 641, 649 (3d Cir. 2017). 
Williams cannot establish causation here.  She did not show that the temporal 
proximity of her suspension was “unusually suggestive” such that it was proof of 
 
7  We do not consider Williams’ new argument on appeal that Feldbaum should not have 
been involved in her suspension proceedings due to a conflict of interest.  See Jenkins, 
705 F.3d at 88 n.12.  Williams claimed in the District Court that Langford was also 
biased against her, but we do not address that issue as Williams does not raise it in her 
appellate brief.  See Wettach, 811 F.3d at 115. 
9 
 
retaliatory motive.  See Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016); Farrell v. 
Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (explaining that “temporal 
proximity alone will be insufficient to establish the necessary causal connection when the 
temporal relationship is not ‘unusually suggestive’”) (citation omitted).  Williams was 
informed of the charges against her and the likelihood that she would be suspended 
weeks before she filed this lawsuit.  A suspension was initially issued in January 2020, 
when Williams failed to respond to Langford’s email scheduling a meeting about the 
charges.  Her hearing was already scheduled for February 21, 2020, when she filed her 
lawsuit on February 19, 2020. The fact that the hearing took place as scheduled, and that 
Williams was suspended as a result, does not suggest that Williams was suspended in 
retaliation for initiating this litigation. See Farrell, 206 F.3d at 280-81 (emphasizing that 
“causation, not temporal proximity . . . is an element of plaintiff’s prima facie case, and 
temporal proximity . . . merely provides an evidentiary basis from which an inference can 
be drawn”) (citation omitted). 
Additionally, Williams did not establish a causal link between her posts on Twitter 
and the outcome of her Title IX claim.  “[F]or protected conduct to be a substantial or 
motiving factor in a decision, the decisionmakers must be aware of the protected 
conduct.”  Ambrose v. Township of Robinson, 303 F.3d 488, 493 (3d Cir. 2002).  
Williams has not pointed to any record evidence that the individuals involved in 
considering her Title IX claim knew about her posts. 
Finally, Williams argued in the District Court that defendants engaged in 
spoliation of evidence when her e-mail account was automatically deleted during this 
10 
 
litigation pursuant to Penn State’s data retention policy.  The District Court did not abuse 
its discretion in concluding that Penn State inadvertently deleted her account as a matter 
of routine, as opposed to in bad faith, where Williams made only brief and conclusory 
arguments regarding this issue.  See Bull v. United Parcel Serv., Inc., 665 F.3d 68, 79 (3d 
Cir. 2012) (“[A] finding of bad faith is pivotal to a spoliation determination.”).  Williams 
lists various categories of emails in her appellate brief that she believes were destroyed, 
but she does not explain how they would have assisted in proving her claims.8 
Accordingly, we will affirm the judgment of the District Court.9 
 
8  Williams also raises many new arguments for the first time in her appellate brief.  For 
example, she claims that her email was hacked, that documents relating to this litigation 
were forged, and that her transcripts were withheld from her for several years.  As 
explained above, we do not consider these new allegations for the first time on appeal.  
See Wettach, 811 F.3d at 115.  We also do not consider the arguments she makes for the 
first time in her reply brief.  See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 
877 F.3d 136, 146 (3d Cir. 2017). 
9 Williams’ motion to file a supplemental appendix is granted to the extent that the 
motion includes any documents that were part of the record before the District Court.  To 
the extent that Williams seeks to expand the record on appeal, her motions are denied, as 
she has not demonstrated that this case presents exceptional circumstances.  See Burton 
v. Teleflex Inc., 707 F.3d 417, 435-36 (3d Cir. 2013). 


Kayla Williams v. Pennsylvania State University

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-2-2025 
Attallah Brightwell v. New Jersey Department of Children and 
Famlies and 
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Recommended Citation 
"Attallah Brightwell v. New Jersey Department of Children and Famlies and" (2025). 2025 Decisions. 259. 
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CLD-084        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-1673 
___________ 
 
ATTALLAH BRIGHTWELL, 
   Appellant 
 
v. 
 
NEW JERSEY DEPARTMENT OF CHILDREN AND FAMLIES AND 
OFFICE OF LICENSING; HELEN EMOND; JENNIFER THIEL; 
JULISSA STUBNICKI; SHARONDA CLARK; ANTOINETTE FRANKLIN; 
MARIA ALTERMIRANO; THERESEA ROSSENER; ANTOINETTE MAHAN; 
KATHRYN O'CONNELL; JANET HOCHMAN; BRIAN ROSS; DIANE CAMISO; 
JOHN DOE (1-12); XYZ (1-12), All of whose true names are unknown, inclusive; 
MARILYN WEISS; BETH FERLICCHI 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 2:22-cv-03016) 
District Judge:  Honorable Evelyn Padin 
____________________________________ 
 
Submitted for Possible Summary Action 
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
February 13, 2025 
Before:  KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed: April 2, 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 
 Attallah Brightwell, proceeding pro se, appeals from an order denying her motion 
seeking relief from the District Court’s decision to grant the defendants’ motions to 
dismiss her civil action.  Because this appeal does not present a substantial question, we 
will summarily affirm. 
 Brightwell filed a complaint, which she later amended, raising state and federal 
claims arising from inspections of her childcare center and the non-issuance of a 
permanent childcare center license.  The defendants filed motions to dismiss. Over 
Brightwell’s objections, the United States District Court for the District of New Jersey 
granted the motions to dismiss by order entered November 17, 2023.  On December 31, 
2023, Brightwell filed a motion that was captioned as seeking relief under Federal Rule 
of Civil Procedure 60(b).  The District Court denied that motion by order entered March 
12, 2024, agreeing with the defendants that it was untimely under Local Civil Rule 7.1(i), 
and that, alternatively, Brightwell failed to establish that relief was warranted on the 
merits.  Brightwell filed a notice of appeal on April 11, 2024.   
 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review the denial of 
Brightwell’s motion for abuse of discretion.1  See Blystone v. Horn, 664 F.3d 397, 415 
 
1 We lack jurisdiction to review the order granting the defendants’ motions to dismiss.  
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), Brightwell had to file her 
notice of appeal within 30 days of the entry of judgment.  That requirement is 
“mandatory and jurisdictional.”  Bowles v. Russell, 551 U.S. 205, 209 (2007) (quoting 
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61 (1982) (per curiam)).  The 
 
3 
(3d Cir. 2011) (Rule 59(e) motions); Brown v. Phila. Hous. Auth., 350 F.3d 338, 342 (3d 
Cir. 2003) (Rule 60(b) motions).  We may summarily affirm a decision of the District 
Court on any basis supported by the record if the appeal does not raise a substantial 
question.  See L.A.R. 27.4; I.O.P. 10.6; Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 
2011) (per curiam). 
The District Court did not abuse its discretion in denying Brightwell’s motion as 
untimely filed.  In that motion, Brightwell alleged that the District Court committed 
various legal errors in its decision granting the defendants’ motions to dismiss.2  Such a 
motion, seeking to alter or amend the judgment, must be filed no later than 28 days after 
entry of the judgment.  See Fed. R. Civ. P. 59(e).3  The District Court entered its order 
 
District Court granted the defendants’ motions to dismiss by order entered November 17, 
2023.  Thus, Brightwell had until Monday, December 17, 2023, to file a timely notice of 
appeal of that judgment.  Her notice of appeal, filed on April 11, 2024, was several 
months late.  Because Brightwell’s December 31, 2023 motion – whether construed as 
seeking relief under Federal Rule of Civil Procedure 59(e) or Rule 60(b) – was filed more 
than 28 days after entry of the order granting the defendants’ motions to dismiss, it did 
not toll the time to file an appeal.  See Fed. R. App. P. 4(a)(4)(A)(v) & (vi).   
   
2 In particular, she argued that the District Court erred in (1) failing to conduct oral 
argument; (2) concluding that certain claims were barred by res judicata; (3) “the 
exclusion of the [discovery] rule”; (4) holding that she failed to allege the existence of a 
plausible contractual relationship with the defendants for purposes of 42 U.S.C. § 1981; 
(5) determining that there was no employer-employee relationship between her and the 
defendants for purposes of Title VII of the Civil Rights Act of 1964; (6) concluding that 
further amendment of the complaint would have been futile; and (7) refusing to exercise 
supplemental jurisdiction over state law claims.    
 
3 Although the District Court evaluated Brightwell’s motion under Local Civil Rule 
7.1(i), which provides 14 days to file a motion for reconsideration, under our precedent, 
we construe her motion as having been filed in part pursuant to Rule 59(e) of the Federal 
 
4 
granting the defendants’ motions to dismiss on November 17, 2023.  Brightwell filed her 
motion more than 28 days later, on December 31, 2023.4   
We note that Brightwell submitted a letter to the District Court on December 6, 
2023, asking about the deadline for filing a motion for reconsideration.  In another letter, 
which was filed on December 15, 2023, Brightwell claimed that she did not receive the 
order granting the defendants’ motions to dismiss until December 1, 2023.  These letters 
do not provide any basis for relief.  They did not evince an intention to appeal.  Although 
a District Court can extend or reopen the time for filing a notice of appeal, see Fed. R. 
App. P. 4(a)(5) & 4(a)(6), there is no basis in Brightwell’s letters or in the record for 
doing so.  In addition, the Federal Rules of Civil Procedure prohibit a District Court from 
granting an extension of time to file a motion under Rules 59(e) and 60(b).  See Fed. R. 
Civ. P. 6(b)(2).  Finally, nothing in Brightwell’s letters indicated that she intended for the 
letters themselves to serve as a motion for reconsideration.5   
 
Rules of Civil Procedure.  See Wiest v. Lynch, 710 F.3d 121, 127 (3d Cir. 2013).   
 
4 Because Rule 59(e) is a claim-processing rule, an objection based on the untimeliness of 
such a motion may be forfeited.  See Eberhart v. United States, 546 U.S. 12, 19 (2005) 
(per curiam).  Here, the defendants objected to Brightwell’s motion on timeliness 
grounds.   
 
5 Assuming that Brightwell’s December 2023 motion had been filed within 28 days of the 
order granting the defendants’ motions to dismiss, we conclude that she did not set forth 
adequate grounds for relief under Rule 59(e).  Rather than relying on an intervening 
change in controlling law, new evidence, or a need to correct a clear error of fact or law 
or prevent manifest injustice, Brightwell’s motion essentially repeated arguments that she 
made in opposition to the defendants’ motions to dismiss.  See Lazaridis v. Wehmer, 591 
F.3d 666, 669 (3d Cir. 2010); see also Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 
 
5 
To the extent that Brightwell’s December 2023 motion could be construed as 
seeking relief under Rule 60(b), the motion was timely filed.  See Fed. R. Civ. P. 60(c)(1) 
(“A motion under Rule 60(b) must be made within a reasonable time—and for reasons 
(1), (2), and (3) no more than a year after the entry of the judgment or order or the date of 
the proceeding.”).  Nevertheless, no relief is warranted.  A Rule 60(b) motion is not a 
substitute for appeal, see Morris v. Horn, 187 F.3d 333, 336 (3d Cir. 1999), and the 
arguments raised in Brightwell’s motion could have been raised in an appeal of the order 
granting the defendants’ motions to dismiss.  See note 2, supra. 
Accordingly, we will summarily affirm the District Court’s judgment.   
 
n.5 (2008) (noting that a Rule 59(e) motion may not be used to relitigate old matters or to 
present evidence or arguments that could have been offered earlier). 


Attallah Brightwell v. New Jersey Department of Children and Famlies and

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-23-2025 
USA v. Ryan Blumling 
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Recommended Citation 
"USA v. Ryan Blumling" (2025). 2025 Decisions. 314. 
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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. 23-2853 
_______________ 
 
 
UNITED STATES OF AMERICA 
 
v. 
 
RYAN T. BLUMLING, 
Appellant 
 
_______________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. No. 2:15-cr-00028-001) 
District Judge: Honorable Arthur J. Schwab 
_______________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
January 30, 2025 
 
Before: KRAUSE, PORTER, and ROTH, Circuit Judges 
 
(Filed: April 23, 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 
 
KRAUSE, Circuit Judge. 
Appellant Ryan Blumling violated the conditions of his supervised release, and the 
District Court sentenced him to 40 months’ imprisonment.  Upon Blumling’s filing of a 
pro se appeal, his counsel has moved to withdraw pursuant to Third Circuit L.A.R. 109.2 
and Anders v. California, 386 U.S. 738 (1967).  We perceive no non-frivolous issues 
after an independent review of the record, and therefore will grant counsel’s motion and 
affirm. 
I. DISCUSSION1 
When counsel seeks to withdraw under Anders, we ask two questions: “(1) 
whether counsel’s brief in support of [his] motion fulfills the requirements of L.A.R. 
109.2(a); and (2) whether an independent review of the record presents any non-frivolous 
issues.”  United States v. Langley, 52 F.4th 564, 569 (3d Cir. 2022).  We address each in 
turn.  
A. Counsel’s Brief Satisfies Anders’ Requirements 
To comport with the requirements of L.A.R. 109.2(a) and withdraw under Anders, 
counsel must satisfy the court that he has “thoroughly examined the record in search of 
appealable issues” and “explain[] why those issues are frivolous.”  Id.  Defense counsel’s 
filing reflects a thorough review of the record, as well as additional conversations with 
Blumling and other relevant parties.  It also explains counsel’s conclusion that there are 
 
1 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 and authority 
to revoke supervised release under 18 U.S.C. § 3583(e), and we have jurisdiction under 
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).  We review the reasonableness of the District 
Court’s sentence for abuse of discretion.  Gall v. United States, 552 U.S. 38, 51 (2007). 
3 
 
no non-frivolous arguments as to the District Court’s authority to revoke Blumling’s 
supervised release or the procedural and substantive reasonableness of the imposed 
sentence.  Counsel has therefore met his burden under Anders. 
B. There are No Non-Frivolous Issues on Appeal 
Our independent review of the record, guided by counsel’s brief, confirms that 
there are no non-frivolous issues on appeal.  See id. (“[I]f counsel has fulfilled [his] 
obligation under Anders, then we may limit our review of the record to the issues counsel 
raised.”).  
First, the District Court had authority to revoke Blumling’s supervised release.  
Revocation and imprisonment may be ordered where the Court “finds by a preponderance 
of the evidence that the defendant violated a condition of supervised release.”  18 U.S.C. 
§ 3583(e)(3).  Here, the Probation Office reported that Blumling committed ten violations 
of his supervised release terms.  Blumling admitted to violations 4–9 through counsel, 
and the Court accordingly found that he committed those violations by a preponderance 
of the evidence.  Then, after argument and the presentation of evidence in a hearing that 
complied with Federal Rule of Criminal Procedure 32.1, the Court found that he also 
committed violation 10. 
It is true that the District Court did not ask Blumling if he admitted to violations 
4–9 directly, and he now claims that he “did not agree and/or instruct counsel to 
voluntarily admit to all of the violations.”  Pro Se Br. 17.  But while waiver of Rule 
32.1’s protections must be knowing and voluntary, we do not require “rigid or specific 
colloquies” in the context of supervised release revocation. United States v. Manuel, 732 
4 
 
F.3d 283, 291 (3d Cir. 2013) (quoting United States v. Hodges, 460 F.3d 646, 651 (5th 
Cir. 2006)).  The waiver is valid if it is “knowing and voluntary under a ‘totality of the 
circumstances,’” id.—a standard satisfied here because Blumling affirmed that his 
counsel had “done everything [he] asked him to do” and nothing Blumling “believe[s] he 
should not have done,” App. 53–54.  In any event, the Court still had authority to revoke 
the term of supervised release based on its finding that Blumling committed violation 10, 
and nothing in the record indicates that this finding was the result of an abuse of 
discretion or a procedurally deficient hearing. 
Second, the sentence was procedurally reasonable.  A district court is required to 
correctly calculate the applicable guidelines range, consider departure motions, and 
consider the relevant 18 U.S.C. § 3553(a) factors.  See United States v. Merced, 603 F.3d 
203, 215 (3d Cir. 2010).  Here, there were no departure motions and, based on 
Blumling’s criminal history category and the grade of his most serious violation, the 
Court correctly calculated a guidelines range sentence of 8–14 months on each of his four 
underlying counts of conviction.  The Court also gave due consideration to the § 3553(a) 
factors.  It addressed the seriousness and multitude of Bluming’s violations, which 
included failure to make restitution payments despite having been granted an 
accommodation, testing positive for drugs and alcohol, leaving the District without 
authorization, and taking $60,000 from customers for contractor jobs but not completing 
the work he was hired to do.  And it affirmed that the sentence was “sufficient but no 
greater than necessary to achieve the sentencing goals of rehabilitation, punishment, and 
deterrence.”  App. 54.   
5 
 
Third, the District Court’s imposition of four 10-month sentences to be served 
consecutively in accord with Blumling’s four underlying counts of conviction was 
substantively reasonable.  A sentence is substantively reasonable “unless no reasonable 
sentencing court would have imposed the same sentence on that particular defendant for 
the reasons the district court provided.”  United States v. Tomko, 562 F.3d 558, 568 (3d 
Cir. 2009) (en banc).  That high bar is not met here.  The Court is permitted to “impose 
consecutive terms of imprisonment upon revocation of supervised release” under 18 
U.S.C. § 3584(a) even where, as here, “the sentences for the underlying crimes ran 
concurrently.”  United States v. Dees, 467 F.3d 847, 851–52 (3d. Cir. 2006).  Given the 
repeated breaches of trust that accompanied Blumling’s seven violations, and the 
financial harm done to those who sought his contracting services, we cannot say that no 
reasonable court would have imposed the same sentence. 
II. CONCLUSION 
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm 
the judgment of the District Court.2  
 
2 In accordance with L.A.R. 109.2(b) we state that the issues presented here lack legal 
merit, so Blumling’s counsel is not required to file a petition for writ of certiorari with the 
Supreme Court. 


USA v. Ryan Blumling

USA v. Omar Colon

The Public Interest Legal Foundation v. Secretary Commonwealth of Pennsylvania

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-25-2025 
In Re: Juan Alvarez Perez 
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Recommended Citation 
"In Re: Juan Alvarez Perez" (2025). 2025 Decisions. 322. 
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HLD-009        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1381 
___________ 
 
IN RE: JUAN ALVAREZ PEREZ, 
    Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the District of New Jersey 
(Related to D.N.J. Civ. No. 1:24-cv-05715) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
March 27, 2025 
Before:  CHAGARES, Chief Judge, HARDIMAN and PORTER, Circuit Judges 
 
(Opinion filed: April 25, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 Juan Alvarez Perez has filed a pro se petition for a writ of mandamus compelling 
the District Court to rule on his petition for a writ of habeas corpus under 28 U.S.C. 
§ 2241. We will deny the petition. 
 Perez filed a § 2241 petition in April 2024. The District Court granted the 
Government an extension of time to respond, and the Government filed its response in 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
July 2024. The District Court then granted Perez an extension of time to reply to the 
Government’s response, which Perez filed on August 29, 2024. He now files a petition 
for a writ of mandamus asking us to compel the District Judge to rule on his § 2241 
petition. 
A writ of mandamus is a drastic remedy that is available only in extraordinary 
cases. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). Perez 
must show that he has no other adequate means to obtain relief and that he has a clear and 
indisputable right to the writ. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per 
curiam). While district courts have discretion over docket management, see In re Fine 
Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), a writ of mandamus may be 
warranted where “undue delay is tantamount to a failure to exercise jurisdiction.” 
Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). The District Court has exercised 
jurisdiction and granted both parties’ requests for extensions of filing deadlines in this 
case. We cannot conclude that the current delay in deciding Perez’s § 2241 petition 
constitutes a failure to exercise jurisdiction or warrants the extraordinary remedy of 
mandamus. We are confident that the District Court will issue a ruling in due course. 
We will thus deny Perez’s mandamus petition without prejudice to his filing 
another mandamus petition if the District Court does not act without undue delay.  


In Re: Juan Alvarez Perez

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-29-2025 
The Public Interest Legal Foundation v. Secretary Commonwealth 
of Pennsylvania 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"The Public Interest Legal Foundation v. Secretary Commonwealth of Pennsylvania" (2025). 2025 
Decisions. 336. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/336 
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 
 
Nos. 23-1590/23-1591/23-3045  
 
 
PUBLIC INTEREST LEGAL FOUNDATION, 
Appellant in 23-1591 
 
v. 
 
SECRETATY COMMONWEALTH OF PENNSYLVANIA; 
JONATHAN M. MARKS, in his official capacity as Deputy Secretary for Elections and 
Commissions; BUREAU OF COMMISSIONS ELECTIONS & LEGISLATION 
 
Secretary Commonwealth of Pennsylvania, Jonathan M. Marks, 
         Appellants in 23-1590/23-3045 
 
(M.D. Pa. No. 1:19-cv-00622) 
 
 
ORDER 
 
The opinion filed April 25, 2025 is vacated at the direction of the Court, having 
been issued prematurely.  An amended opinion shall be filed contemporaneously with 
this order.   
 
For the Court, 
 
Patricia S. Dodszuweit. Clerk 
 
 
Dated: April 29, 2025 
 
cc: All Counsel of Record  
 


2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-8-2025 
In Re: Dwight Campbell 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: Dwight Campbell" (2025). 2025 Decisions. 376. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/376 
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ALD-142-E        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1705 
___________ 
 
IN RE: DWIGHT CAMPBELL, 
    Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the Western District of Pennsylvania 
(Related to 3:20-cv-00151 & 3:20-cv-00228) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
May 6, 2025 
 
Before:  BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges 
 
(Opinion filed May 8, 2025) 
 
__________ 
 
OPINION* 
__________ 
PER CURIAM 
 Dwight Campbell, proceeding pro se, has filed a petition for a writ of mandamus.  
We will deny the petition.   
Campbell filed lawsuits in the United States District Court for the Western District 
of Pennsylvania, raising claims related to state court criminal proceedings that had been 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
brought against him in Blair County, Pennsylvania.  The District Court dismissed those 
cases, and we affirmed.  See C.A. Nos. 22-1894; 22-1903.     
In his mandamus petition, Campbell asks us to require that federal criminal 
charges be brought against individuals who he claims violated his rights in connection 
with the criminal proceedings.  It is well-settled, however, that there is no clear and 
indisputable right to require the government to initiate criminal proceedings.  See Linda 
R.S. v. Roland D., 410 U.S. 614, 619 (1973); cf. Inmates of Attica Corr. Facility v. 
Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973) (affirming dismissal of a complaint in 
mandamus to compel the United States Attorney to investigate, arrest, and prosecute state 
officials for committing federal offenses).  Moreover, to the extent that Campbell 
challenges the District Court’s dismissal of his civil lawsuits, a petition for writ of 
mandamus is not a substitute for an appeal.  See In re Briscoe, 448 F.3d 201, 212 (3d Cir. 
2006).  Campbell’s lack of success in his appeals of those dismissals does not mean that 
there is no mechanism to seek relief.  Furthermore, we cannot intervene in any pending or 
completed state court criminal actions in which Campbell is a defendant.  See In re 
Richards, 213 F.3d 773, 781 (3d Cir. 2000) (explaining that, ordinarily, federal courts of 
appeal “lack appellate jurisdiction over their state counterparts, thus making writs of 
mandamus generally inappropriate”).  Finally, although Campbell cites the Crime 
Victims’ Rights Act (CVRA) in his petition, he has not alleged that he has been denied 
any right under the CVRA that could form the basis for mandamus relief.  Cf. United 
States v. Moussaoui, 483 F.3d 220, 234 (4th Cir. 2007) (explaining that “[t]he rights 
codified by the CVRA . . . are limited to the criminal justice process”). 
 
3 
 
For the above reasons, we will deny the mandamus petition. 
 


In Re: Dwight Campbell

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-12-2025 
Michael Kissell v. Pennsylvania Office of the Budget 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Michael Kissell v. Pennsylvania Office of the Budget" (2025). 2025 Decisions. 392. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/392 
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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. 24-2254 
__________ 
 
MICHAEL F. KISSELL, 
   Appellant 
 
v. 
 
PENNSYLVANIA OFFICE OF THE BUDGET LEGAL OFFICE;  
BRIAN ZWEIACHER; PATSY IEZZI; CHRISTOPHER P. SKATELL; 
PENNSYLVANIA DEPARTMENT OF CORRECTIONS 
____________________________________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. Civil Action No. 2:22-cv-01715) 
District Judge:  Honorable Christy Criswell Wiegand 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
February 4, 2025 
Before:  KRAUSE, PHIPPS, and ROTH, Circuit Judges 
 
(Opinion filed: May 12, 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 
 Appellant Michael Kissell appeals the District Court’s July 1, 2024 order adopting 
the Magistrate Judge’s Report and Recommendation in full, granting Defendants’ 
motions to dismiss, and dismissing his complaint with prejudice.  Because the District 
Court properly dismissed Kissell’s complaint as barred by sovereign immunity, res 
judicata, the statute of limitations, and for failure to state a claim, we will affirm the 
District Court’s order and judgment.   
I. 
Kissell filed his current suit against the Pennsylvania Department of Corrections 
(“DOC”), the Pennsylvania Office of the Budget Legal Office, and Brian Zweiacher, a 
former Office of the Budget attorney, and two of his former attorneys, Christopher 
Skatell and Patsy Iezzi, in December 2022.  Defendants all filed motions to dismiss the 
complaint.  Kissell then filed his first amended complaint which Defendants again moved 
to dismiss. The District Court, based on the Magistrate Judge’s recommendation, 
dismissed Kissell’s complaint without prejudice for failure to comply with Federal Rule 
of Civil Procedure 8.  Kissell then filed his second amended complaint.   
Kissell’s second amended complaint alleged that Defendants had been involved in 
a years-long conspiracy to deprive him of the monetary award and reinstatement he had 
won in a jury trial against his former employer, the DOC.  Kissell alleged that this 
conspiracy forced him to retire early from his reinstated position and caused him to 
 
 
3 
commit tax fraud, and violated his rights under the First and Fourteenth Amendments, 42 
U.S.C. § 1983, and 42 U.S.C. § 2000e-3(a) (Title VII), among other related state law 
claims.  Defendants again moved to dismiss the complaint under Federal Rules of Civil 
Procedure 12(b)(1), 12(b)(2), and 12(b)(6).   
The Magistrate Judge recommended that the District Court dismiss with prejudice 
the entire second amended complaint for, inter alia, failure to comply with Rule 8, failure 
to state a claim, and as barred by the relevant statutes of limitation, sovereign immunity, 
and res judicata.  The District Court adopted the Magistrate Judge’s report in full, 
granting Defendants’ motions to dismiss and dismissing with prejudice Kissell’s second 
amended complaint.  Kissell timely appealed.   
II. 
 The District Court had jurisdiction under 28 U.S.C. § 1331.  We have jurisdiction 
pursuant to 28 U.S.C. § 1291.  Our review of a dismissal under Federal Rules of Civil 
Procedure 12(b)(1) and 12(b)(6) is plenary.  Bruni v. City of Pittsburgh, 824 F.3d 353, 
360 (3d Cir. 2016); Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 172 (3d Cir. 2009).  
We review a dismissal for failure to comply with Rule 8 for an abuse of discretion.  In re 
Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996).  However, to the extent that 
the District Court determined that Kissell’s complaint failed to state a claim under the 
standard articulated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), 
and reiterated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), our review is de novo.  
 
 
4 
See Klotz v. Celentano Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462 (3d Cir. 
2021).   
Under the Twombly-Iqbal standard, a pleading “must contain sufficient factual 
matter, accepted as true, to state a claim to relief that is plausible on its face.”  Iqbal, 556 
U.S. at 678 (cleaned up).  Although pro se pleadings must be held to “less stringent 
standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 
(1972), “pro se litigants still must allege sufficient facts in their complaints to support a 
claim.”  Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). 
III.  
After our de novo review of the record, we agree that Kissell’s § 1983 claims 
against Defendants Skatell and Iezzi fail because they are not state actors.  We are also 
satisfied that Kissell’s § 1983 and state law claims against the DOC and the Office of the 
Budget are barred because of sovereign immunity, while his Title VII claim against the 
DOC is barred by res judicata.  We further agree that all of Kissell’s claims against 
Zweiacher are barred by the statute of limitations.  Finally, we agree that Kissell failed to 
state a claim as to any of his remaining state law claims.   
A. 
 Kissell’s § 1983 claims against Defendants Skatell and Iezzi fail because they are 
not state actors.  “[A] plaintiff seeking to hold an individual liable under § 1983 must 
establish that [they were] deprived of a federal constitutional or statutory right by a state 
actor.”  Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).  “A person may be found to be a 
 
 
5 
state actor when (1) he is a state official, (2) he has acted together with or has obtained 
significant aid from state officials, or (3) his conduct is, by its nature, chargeable to the 
state.”  Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (cleaned 
up).  “Attorneys performing their traditional functions will not be considered state actors 
solely on the basis of their position as officers of the court.”  Id.  The District Court 
correctly found that Skatell and Iezzi could not be found to be state actors based on the 
facts as alleged by Kissell.  Additionally, Kissell’s § 1983 conspiracy claim against 
Skatell and Iezzi fails because he did not “allege specific facts showing an agreement and 
concerted action amongst the defendants.”  Tonkovich v. Kan. Bd. of Regents, 159 F.3d 
504, 533 (10th Cir. 1998). 
B. 
 Kissell’s § 1983 claims against the DOC and the Office of the Budget are barred 
by sovereign immunity.  The Eleventh Amendment “make[s] states generally immune 
from suit by private parties in federal court [and] [t]his immunity extends to state 
agencies and departments.”  MCI Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503 
(3d Cir. 2001) (cleaned up).  Congress did not override the states’ immunity from suit 
when it enacted § 1983, see Quern v. Jordan, 440 U.S. 332, 345 (1979), and Pennsylvania 
has expressly not waived its Eleventh Amendment immunity in federal courts.  42 Pa. 
Cons. Stat. Ann. § 8521(b).  The District Court correctly found that because the DOC and 
Office of the Budget are state agencies and departments, they are immune from civil 
rights suits under § 1983.  We further agree with the DOC and the Office of the Budget 
 
 
6 
that their Eleventh Amendment immunity in federal courts extends to Kissell’s state law 
claims.  See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 n.12 (1984). 
C. 
 To the extent Kissell brought Title VII claims against any party apart from the 
DOC, his former employer, the claims fail as a matter of law.  “Title VII prohibits 
unlawful employment practices by employers,” see Emerson v. Thiel Coll., 296 F.3d 184, 
190 (3d Cir. 2002), and it does not provide for individual liability.  See Sheridan v. E.I. 
DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996).  As for Kissell’s Title 
VII claims against the DOC, we agree that they are barred by res judicata.   
This is the fourth time Kissell has argued before us that the DOC violated his Title 
VII rights.  Specifically, Kissell has argued that the DOC retaliated against him for 
continuing to report sexual misconduct after his reinstatement and created a hostile work 
environment that forced him into early retirement.  See Kissell v. Dep’t of Corr., 634 F. 
App’x 876, 879 (3d Cir. 2015) (per curiam) (“Kissell I”); Kissell v. Dep’t of Corr., 670 F. 
App’x 766, 767-68 (3d Cir. 2016) (per curiam) (“Kissell II”); Kissell v. Pa. Dep’t of 
Corr., 808 F. App’x 58, 59 (3d Cir. 2020) (per curiam) (“Kissell III”).   
In Kissell I, we vacated to allow Kissell to file an amended complaint.  634 F. 
App’x at 879-80.  In Kissell II, we then affirmed the District Court’s with-prejudice 
dismissal of his Title VII claim against the DOC because Kissell had “not sufficiently 
allege[d] the second and third elements of retaliation.”  670 F. App’x at 768.  In Kissell 
III, we affirmed the District Court’s dismissal of Kissell’s complaint on the grounds of 
 
 
7 
res judicata because “(1) a judgment on the merits was entered in Kissell II; (2) Kissell II 
and Kissell III involve[d] the same set of parties (Kissell and the DOC); and (3) the 
claims raised in Kissell III inarguably [were] the same as those raised in Kissell II.”  
Kissell III, 808 F. App’x at 59.  We agree that Kissell’s current Title VII claims of 
retaliation, hostile work environment, and forced retirement are also barred by res 
judicata because they are inarguably the same claims he brought before us in Kissell II 
and Kissell III. 
D. 
Kissell’s claims against Zweiacher in his personal capacity are barred by the 
statute of limitations.  “[W]e permit a limitations defense to be raised by a motion under 
Rule 12(b)(6) only if the time alleged in the statement of a claim shows that the cause of 
action has not been brought within the statute of limitations.”  Schmidt v. Skolas, 770 
F.3d 241, 249 (3d Cir. 2014) (cleaned up).  Kissell identified his specific claims against 
Zweiacher in Count I of his complaint.  Within Count I, Kissell specifically asserted the 
timeframe of Zweiacher’s alleged actions ranged from 2005 when he first was assigned 
to Kissell’s case to 2012 when Kissell was advised that “overpayments were made in his 
name and his wages would be attached.”  Kissell alleges under Count II, where he 
identified his specific claims against Iezzi, that his claims did not accrue until December 
8, 2020 when he received a transcript of his 2004-2008 taxes, because only then did he 
realize the full extent of the injury and that a conspiracy had occurred.  However, the 
facts as alleged in his complaint indicate that Kissell knew in 2012 there were issues with 
 
 
8 
his taxes that had yet to be resolved.  Because all of his federal claims against Zweiacher 
rest on Kissell’s tax issues, the District Court properly found that Pennsylvania’s 
discovery rule did not delay the accrual of the statute of limitations.  The same statute of 
limitations bar applies to Kissell’s state law claims against Zweiacher. 
E. 
Finally, to the extent any state law claims remain, we agree that Kissell failed to 
include “factual allegations to support any of [his] claims” sufficient to meet the 
Twombly-Iqbal standard.  Kissell’s complaint offers “formulaic recitation[s] of the 
elements of a cause of action” for his state law claims, Twombly, 550 U.S. at 555, while 
making “naked assertions devoid of further factual enhancement.”  Iqbal, 556 U.S. at 
678.  The District Court correctly found that Kissell’s “recitation of the elements” and his 
“assertions” did not suffice to state a claim.   
IV. 
For the foregoing reasons, we will affirm the District Court’s order and judgment.1   
 
 
1  Kissell brought a motion for Federal Rule of Civil Procedure 11 sanctions against 
Appellees Skatell and Iezzi because “the defendants[’] representatives [on appeal] make 
the argument that the appellant shows no inference or does not present facts to support 
his assertions.”  Dkt. No. 32 at 1.  We deny Kissell’s motion because the actions for 
which he seeks sanctions occurred during the appeal and not during the District Court 
proceedings.  “On its face, Rule 11 does not apply to appellate proceedings . . . [and] 
[n]either the language of Rule 11 nor the Advisory Committee Note suggest that the Rule 
could require payment for any activities outside the context of district court proceedings.”  
Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 406 (1990).  In any event, the conduct 
Kissell complains about is not sanctionable under Rule 11(b) or any other ethical rules.   


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Veterans Guardian VA Claim Consulting LLC v. Matthew J. Platkin

Kayla Williams v. Pennsylvania State University

Attallah Brightwell v. New Jersey Department of Children and Famlies and

USA v. Ryan Blumling

USA v. Omar Colon

The Public Interest Legal Foundation v. Secretary Commonwealth of Pennsylvania

In Re: Juan Alvarez Perez

The Public Interest Legal Foundation v. Secretary Commonwealth of Pennsylvania

In Re: Dwight Campbell

Michael Kissell v. Pennsylvania Office of the Budget

40,620

41,076