DLD

- 003 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 2

- 2744

___________ BENITA TURNER , Appellant

v. KAREN SPALEY; B. SCHIEB

____________________________________ On Appeal from the United States Dist rict Court for the Western District of Pennsylvania (D.C. Civil No . 2

- 12

- cv - 00445) District Judge: Honorable Arthur J. Schwab

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pu rsuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 4, 2012 Before: AMBRO, SMITH and CHAGARES, Circuit Judges (Opinion filed : October 12, 2012 )

_________________ OPINION

_________________ PER C URIAM Benita Turner, proceeding pro se, appeals from an order of the United States District Court for the Western District of Pennsylvania dismissing her complaint pursuant2 to 28 U.S.C § 1915(e)(2)(B). B ecause her appeal is lacking an arguable basis in l aw , we will dismiss it. Because we primarily write for the parties, we need only recite the facts necessary for our discussion. In submissions to the District Court, Turner notes that she lost her job as a certi fied nursing assistant after failing to ret urn a completed confidential agreement to her employer. Turner allege s that she had been receiving unemployment compensation (“UC”) benefits until Spaley , the Human Resources Director at her former place of employment, allegedly entered a reversal decisio n into the system that took effect on January 6, 2012. According to Turner, Schieb, the UC representative, then deactivated her UC card so that she could not receive her benefits. Turner states that because of the termination of her benefits, she has bee n unable to pay bills, has been jailed for demanding her benefits at her former place of employment , and has had her children placed in the custody of Child Protective Services. In April 2012, Turner filed this action against Spaley and Schieb . On April 25, 2012, a Magistrate Judge entered a Report and Recommendation (“R&R”), recommending that Tur ner’s complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for being frivolous and failing to state a claim. In so recommending, the Magi strate Judge noted that the District Court lacked subject

- matter jurisdiction over Turner’s complaint. Turner did not object to the Magistrate Judge’s R &R and on May 21, 2012, the District Court entered a Memorandum Order adopting the R&R and dismissing T urner’s complaint with prejudice. Turner then timely filed this appeal.3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise plenary review over the District Court’s dismissal order. See Allah v. Seiverling , 229 F.3d 220, 223 ( 3d Cir. 2000). The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See id. To survive d ismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). We look for “‘enough facts to raise a reasonable expectation that discovery will reveal evidence of ’ the necessary elements” of a claim for relief. Phillips v. Cnty. of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly , 550 U.S. at 556)

. Becau se Turner is proceeding in forma pauperis, we must dismiss her appeal unde r 28 U.S.C. § 1915(e)(2)(B) if it “lacks an arguable basis either in law or fact.” Neitzke v. Williams

The District Court properly dismissed Turner’s com plaint , 490 U.S. 319, 325 (1989).

1

1 The District Court did not provide Turner leave to amend her compl aint because it was “clear from the face of the complaint that the deficiencies cannot be cured by amendment.” ( Turner v. Spaley , W.D. Pa. Civ. No. 2:12

- cv - 00445, Docket # 6 at 6 n.4.); see Grayson v. Mayview State Hosp. , 293 F.3d 103, 114 (3d Cir. 2002) (noting that courts should not dismiss pro se complaints without granting leave to amend unless “amendment would be inequitable or futile”). We conclude that the District Court did not err in declining to allow Turner an opportunity to amend her complaint because, as discussed below, Turner’s underlying claims lack merit. , and we concur with the District Court’s conclusion that her complaint failed to establish subject matter4 jurisdiction. For a federal court to exercise diversity jurisdiction over an action, the parties must be citizens of different states and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a)(1). Citizenship of a natural person is determined by the state of his or her domicile. See Swiger v. Allegheny Energy, Inc. , 540 F.3d 179, 182 (3d Cir. 2008). Here, Turner’s complaint expl icitly states that she, Spaley, and Schieb are all citizens of Pennsylvania. Therefore, we concur with the District Court’s observation that Turner’s complaint does not establish diversity jurisdiction. 2 Federal courts also have subject matter jurisdicti on over “all civil actions arising under the Constitution, laws, o r treaties of the United States,” 28 U.S.C. § 1331; however, “federal courts have federal question jurisdiction only when a federal claim appears in the complaint ,” Levine v. United Healthca re Corp. , 402 F.3d 156, 162 (3d Cir. 2005) (citation omitted). Here, Turner failed to identify any federal statute or constitutional right that was allegedly violated by Spaley and Schieb. Even if we construe Turner’s complaint as raising a civil rights claim pursuant to 42 U.S.C. § 1983,

see Haines v. Kerner

2 Although Turner’s complaint fails to satisfy the diversity of citizenship requirement, we also note that her claim probably also fails to meet the amount in controversy requirement. An exhibit attached to the complaint notes that the total amount payable to Turner in UC benefits equaled $9,100.00. ( See Turner v. Spaley , W.D. Pa. Civ. No. 2:12

- cv - 00445, Docket # 3

- 5.) Although Turner’s complaint does not contain an exact , 404 U.S. 519, 520 (1972) (noting that courts must hold pro se complaints to “less stringent standards than formal pleadings drafted by lawyers”), it still fails to establish federal question jurisdi ction. To establish a claim under § 1983, a5 plaintiff “must establish that she was deprived of a federal constitutional or statutory right by a state actor.” Kach v. Hose , 589 F.3d 626, 646 (3d Cir. 2009). The District Court correctly determined that Sp aley, a private party, is not a state actor and thus not subject to suit under § 1 983. Furthermore, while the District Court did not expressly analyze Turner’s claim against Schieb, it properly noted that the complaint does not contain any allegations sug gesting that Schieb violated a constitutional right or federal statute as required by § 1983. See id. ; Leshko v. Servis

For the foregoing reasons, we hold that Turner’s appeal lacks an arguable basis in law , and we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). , 423 F.3d 337, 339 (3d Cir. 2005). Therefore, we concur with the District Court’s determination that Turner’s complaint does not estab lish federal question jurisdiction.

amount to whic h she claims she is entitled, her complaint fails to meet the requirement , as the $9,100.00 appears to be a cap on the amount of UC benefits Turner could receive.