2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-2-2011 

# S t eve n Kinle y v

. N J S up e r ior C our t

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-1693

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2011

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2011 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" S t e v e n Kinley v

. N J S u pe r ior C our t " (2011). 2011 D e cisio n s . P a pe r 1153. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2011/1153ALD
- 185 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 1693

___________ STEVEN L. KINLEY, Appellant

v. SUPERIOR COURT OF NEW JERSEY;

ST. F RANCIS MEDICAL CENTER; TRENTON ORTHOPEDIC GROUP

____________________________________ On Appeal from the United States District Court for the District of New Jersey ( D.N.J. Civ. No. 3

- 10

- cv - 06468 ) District Judge: Honorable Freda L. Wolfson

_________ ___________________________ Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 12, 2011 Before : SCIRICA, HARDIMAN AND VANASKIE , Circuit Judges (Opinion filed : June 2, 2011 )

_________ OPINION

_________ PER CURIAM Kinley, proceeding pro se , appeals an order of the District Court dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2). Because the appeal presents no substantial question, we will summarily affirm.2 Kinley has pr eviously attempted to litigate his dispute over injuries he claims he sustained as a result of alleged medical malpractice

. In Kinley v. St. Francis Medical
Center , Civ. No. 3:08

- cv - 0 5496 (D.N.J. 2008), he brought a c laim pursuant to the District Court’s diversity jurisdiction, 28 U.S.C. § 1332, and sought damages under numerous state law theories

. Because complete diversity of citizenship did not exist between the parties, the District Court dismissed his complaint. Kinley did not appeal. In the instant action, Kinley again sought to litigate his dispute, this time invoking the District Court’ s federal question jurisdiction, 28 U.S.C. § 1331. H e claimed that the Defendants violated his “ constitutional right to due process ” by dismissing his state medical malpractice claim for failing to file an affidavit of merit , denying him a court appointed attorney and an expert witness to perform a medical exam, and “keeping all the materials that [he has] that prove [his] case off the records until this day.” Compl

. 2 , ECF
No. 1 . The District Court dismissed his complaint pursuant to its authority under 28
U.S.C. § 1915(e)(2)

. We have jurisdiction over this appe al pursuant to 28 U.S.C. § 1291. We exercise plenary review ove r the District Court’s legal conclusions , M itchell v. Horn , 3 18 F.3d 523, 530 (3d Cir. 2003), and c an affirm the District Court’s order on any ground supported by the record. See Tourscher v. McCullough , 184 F.3d 236, 240 (3d Cir. 19 99). We may summarily affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.3 Dismissal under 28 U.S.C. § 1915(e) is proper if a complaint is frivolous or fails to state a claim upon which rel ief may be granted. To state a claim , a complaint must raise

an allegation of sufficient factual matter which , if accepted as true, could “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (quoting Be ll Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). Kinley’s filings do not do so. He provides no support for his argument that the affidavit of merit requirement has been applied unconstitutional ly , noting only that he “feels” th at that requirement den ie s him his “ constitutional right to due process.” Compl. 2

. Accordingly , t he District
Court was correct to dismiss the action

. 1
We are satisfied that amendment o f Kinley ’s Complaint would have been futile , especially in light of the dismissal of his earlier attempt to bring this suit. T he District
Court therefore properly dismissed without leave to amend. See Grayson v. Mayview State Hosp. , 293 F.3d 103, 114 (3d Cir. 2002). As the appeal presents no substantial question, we will summarily affirm th e judgment below. See

1 To the extent Kinley’s complaint constituted an attempt to appeal the District Court’s decision in his prior case, we agree with the District Court that Kinley should have filed an app eal from that decision instead. 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.