PS1-163 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1460

___________

ERIC J. RHETT,

Appellant

v.

SUPERVISOR C. EVANS; PUBLIC SERVICE ELECTRIC AND GAS CO; HOME 

ENERGY ASSISTANCE PROGRAM; DEPARTMENT OF COMMUNITY AFFAIRS; 

PROCEED INC.

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3-11-cv-02099)

District Judge: Honorable Peter G. Sheridan

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 8, 2014

Before: FISHER, VANASKIE and ALDISERT, Circuit Judges

(Opinion filed: August 12, 2014 )

___________

OPINION

___________

PER CURIAM

Eric J. Rhett appeals pro se from an order granting the defendants’ motions to 

dismiss, one of which was converted to a motion for summary judgment, in an action 
2

seeking relief pertaining to his account for utility services in his home. For the following 

reasons, we will affirm.

In April 2011, Rhett filed a complaint alleging that his utility service account fell 

into arrears because the New Jersey Department of Community Affairs failed to apply a 

credit under the Home Energy Assistance Program. The utility provider, Public Service 

Electric and Gas Company (PSE&G), filed a motion to dismiss, arguing, inter alia, that 

Rhett’s claims were moot. In particular, PSE&G alleged that Rhett was currently being 

provided with utility services, that there were no scheduled interruptions of those 

services, that he was receiving a $73.71 monthly credit from the Home Energy 

Assistance Program, and that there was no past due balance on his account. Because the 

motion relied on a certification from a PSE&G employee, the District Court converted 

the motion to dismiss into one for summary judgment, and provided the parties with 

additional time to present material pertinent to the motion.1 In response, Rhett submitted 

several recent utility service account statements, which included a shut-off notice, listed a 

past-due balance, and omitted any indication that he was receiving a credit. By order 

entered September 11, 2012, the District Court granted PSE&G’s motion, holding, inter 

alia, that Rhett’s claims were moot. 

The Department of Community Affairs also filed a motion to dismiss, asserting 

that it was immune from suit under the Eleventh Amendment, that Rhett’s claims were 

moot, and that Rhett failed to exhaust his administrative remedies before the New Jersey 

 

1 Rhett sought review of this order, and we dismissed the appeal for lack of jurisdiction. 

See Rhett v. Evans, C.A. No. 12-3496 (order entered Dec. 7, 2012).
3

Board of Public Utilities. The District Court agreed and, by order entered February 7, 

2014, granted the motion to dismiss. Rhett appealed. 

We have jurisdiction under 28 U.S.C. § 1291. “We review district court decisions 

regarding both summary judgment and dismissal for failure to state a claim under the 

same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 

(3d Cir. 2011). “To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations omitted). Summary 

judgment is proper where, viewing the evidence in the light most favorable to the 

nonmoving party and drawing all inferences in favor of that party, there is no genuine 

dispute as to any material fact and the moving party is entitled to judgment as a matter of 

law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir. 

2006). We may affirm on any basis supported by the record. See Fairview Twp. v. EPA, 

773 F.2d 517, 525 n.15 (3d Cir. 1985). 

The District Court erred in concluding that Rhett’s claims against PSE&G are 

moot. PSE&G submitted an affidavit from a Customer Operations Supervisor, which 

stated that “Rhett currently receives a credit on his utility account . . . [and that] there is 

no scheduled interruption of services nor is there any plan to schedule any interruption of 

service as there is no past due balance . . . .” But Rhett raised a genuine issue of material 

fact about this contention by providing recent statements stating that “[y]our service is 

currently in danger of being shut off” and that his account was “past due.” The District 

Court acknowledged these statements, but discounted them because “Mr. Rhett receives a 
4

computer generated bill on a pre-formatted bill which are sent to all customers. It is 

impractical to expect PSE&G to pull out Mr. Rhett’s notice from the mass mailing when 

there are so many customers. PSE&G contends that Mr. Rhett should ignore the monthly 

statement since his services are partially paid for by the Home Energy Assistance 

Program, and PSE&G has no intention to collect or shut off service.” There is no 

evidence in the record, however, that it is impractical for PSE&G to provide Rhett with 

an accurate account statement or that PSE&G has advised Rhett to ignore those 

statements. 

Although Rhett raised a genuine issue of material fact concerning whether his 

claims against PSE&G are moot, we conclude that dismissal of his complaint was proper. 

Rhett’s complaint refers to the Fourteenth Amendment and states that he is disabled, but, 

even read liberally, it fails to allege plausible facts sufficient to support a claim for relief. 

See Iqbal, 556 U.S. at 679. To assert a claim under 42 U.S.C. § 1983, a 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). Although PSE&G is subject to 

state regulations, there is no sufficiently “close nexus” between New Jersey and the 

challenged action in this case, namely, the calculation of Rhett’s utility bill. See Jackson 

v. Metro. Edison Co., 419 U.S. 345, 357 (1974) (holding that the termination of electrical 

services by a privately owned utility was action by a private actor and not the state, even 

though the utility company was subject to extensive state regulation). Accordingly, 

because PSE&G did not function as a state actor in these circumstances, Rhett cannot 

establish a claim under § 1983. 
5

With respect to Rhett’s allegations concerning the Department of Community 

Affairs, we agree that his claims are barred by the Eleventh Amendment. The 

Department of Community Affairs is a principal department “established in the Executive 

Branch of the State Government.” N.J. Stat. Ann. § 52:27D-1. The Eleventh 

Amendment protects a state or state agency from a suit brought in federal court regardless 

of the relief sought, unless Congress specifically abrogates the state’s immunity or the 

state waives its own immunity. MCI Telecomm. Corp. v. Bell Atl., 271 F.3d 491, 503-04 

(3d Cir. 2001).2 Section 1983 does not abrogate states’ immunity, Quern v. Jordan, 440 

U.S. 332, 340-41 (1979), and neither the State of New Jersey nor its agencies have 

consented to suit or waived their Eleventh Amendment immunity. The District Court 

thus properly dismissed the claims brought against the Department of Community 

Affairs. 

For the foregoing reasons, we will affirm the judgment of the District Court.3

 

2

Suits for injunctive relief against state officials brought to end ongoing violations of 

federal law are not barred by the Eleventh Amendment. See Ex Parte Young, 209 U.S. 

123 (1908); cf. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 

139, 146 (1993) (noting inapplicability of Ex Parte Young exception to state agencies). 

Here, Rhett named as a defendant Supervisor C. Evans. According to the District Court, 

“neither PSE&G nor the Department of Community Affairs can identify her as an 

employee. Under any circumstances, Super[visor] Evans has no ability to alter Mr. 

Rhett’s utility bill.” Because Rhett has not challenged this determination on appeal, we 

will not consider it. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (noting that 

issues not raised on appeal are deemed abandoned and waived).

3 Rhett filed a document on August 4, 2014, asking for en banc rehearing in a separate, 

closed appeal, Rhett v. Disman, No. 06-2903, 228 F. App’x 225 (3d Cir. 2007). We note 

that the time for seeking such rehearing has long since passed. See Fed. R. App. P. 35(c), 

40(a)(1).