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- 101 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 4001

___________ OTIS MICHAEL BRIDGEFORTH , Appellant

v. AMERICAN EDUCATION SERVICES, Dave ID# 13955 (Supervisor); U.S. DEPARTMENT OF EDUCATION; BEN GABLE; DIRECT LOANS GROUP

____________________________________ Appeal from the United States District Court for the District of Delaware (D.C. Civ il No. 10

- cv - 00164 ) District Judge: Honorable Gregory M. Sleet

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. ' 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 28, 20 11 Before: RENDELL, FUENTES and SMITH , Circuit Judges (Opinion filed : February 14, 2011 )

_________ OPINION OF THE COURT

_________ PER CURIAM In the District Court, Otis Michael Bridgeforth , proceeding pro se and in forma2 pauperis , filed two complain ts that were consolidated

. He sued American Education Services (“AES”) and its representa tive, Dave ID #13955 (“Dave”) , as well as the United States Department of Education (“DOE”), Direct Loans Group (“DLG”), and Ben Gable,

a DOE or DLG representative. He claimed that the defendants discriminated against him on the basis of race and violated his right to due process of law by placing his deferred student loans into default without notifying him while he was in prison. He also alleged that Dave screamed at him and used a racial epithet during a phone call. Bridgeforth explained that the default status of his loans was preventing him from receiving funds to continue his education. Bridgeforth also claimed that he did not violate the promissory note or become delinquent in repayment; he stated that he never had a repayment schedule. To prove his point, he attached a print

- out of his account summary from the federal government’s web site for di rect loan servicing. The print

- out s tated that no payment was due, but it also described Bridgeforth’s loan status as “in default” and noted that his loans had been transferred to the DOE’s Debt Collect ion Service. The District Court liberally construed the complaint to raise claims of due process , race discrimin ation, and breach of contract. Pursuant to 28 U.S.C. § 1915(e)(2), the District Court dismissed the due process claim as frivolous and the other claims for failure to state a claim upon which relief can be granted. The District Court set forth the elemen ts of a state law contract claim and a race discrimination claim under 42 U.S.C. §3 1981, and gave Bridgeforth leave to amend his complaint to meet the pleading requirements for these two types of claims. Bridgeforth subsequently filed an amended complai nt in which he sued AES, Dave, D OE, and Gable. He stated that the DOE violated his right to due process and breached a contract by changing the status of his student loans from deferred to in default

. He alleged that the DOE had not tried to collect a de bt from him and that he was not in defa u lt. He also claimed that the DOE , by not keeping his loans in deferred status, deprived him of his protected interest in receiving federal funds to continue his education. Bridgeforth also contended that AES and Dav e were liable for breach of contract and race discrimination. In relation to the breach of contract claim, Bridge forth referred to an “MPN” whose “terms . . . specify that [he] has a stated claim.” In relation to the race discrimin ation claim, Bridgefort h stated that he is African American and repeated that Dave used a racial slur. He also stated generally that Dave violated his rights to enforce the promissory note issued by AES. The District Court di smissed the amended complaint as frivolous pursuan t to 28 U.S.C. § 1915(e)(2), and further noted that Bridgeforth failed to state a federal statutory claim. The District Court declined to consider the due process claim, as Bridgeforth had not been granted leave to amend it. The District Court also held that further amendment would be futile. Bridgeforth filed a notice of appeal, specifying that he wished to appeal from the order dismissing his amended complaint.4 We have jurisdiction over his appeal under 28 U.S.C. § 1291. We exercise plenary review over the dismissal of Bridgeforth’s claims

. See Allah v. Seiverling , 229 F. 3d 220, 223 (3d Cir. 2000); Lum v. Bank of A m. , 361 F. 3d 217, 223 (3d C ir. 2004). We review the denial of leave to amend for abuse of discretion. See Lum , 361 F. 3d at 223. O n review, we will dismiss Bridgeforth’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because it does not have an arguable basis in fact or law. See Neitzke v. Williams , 490 U.S. 319, 325 (1989). Despite being given the opportunity to do so by the Dist rict Court, Bridgeforth did

not co rrect the pleading deficiencies in his consolidated complaint. He generally alleged “race discrimination.” Section 1981 prohibits race discrimination in making and enforcing contracts. See Brown v. Philip Morris, Inc. , 250 F.3d 789, 796 (3d Cir. 2001)

. To state a claim under § 1981, a plaintiff must allege that he or she is a member of a racial minority, that the defendant had the intent to discriminate on the basis of race, and the discrimination concerned one or more of the activities enumerated in the statute, which includes the right to make or enforce contracts. Id. at 7 97 (citations omitted)

. Essentially, Bridgeforth claimed that Dave used a racial slur in speaking to him on the telephone. Such an act is offensi ve, but standing alone it does not state a claim under § 1981. In his amendment, Bridgeforth also stated generally that Dave violated his right to enforce a promissory note. However, merely reciting an element of a cause of action or making a bare conclu sory statement is insufficient to state a claim. See Ashcroft v. Iqbal ,5 129 S. Ct. 1937, 1949 (U.S. 2009). Bridgeforth also did not state a cl aim for a due process violation; as the District Court concluded, the claim was frivolous. Bridgeforth did n ot specify the District Court’s first decision in his notice on appeal, but we will consider the designated final order as bringing up the earlier order for our review at this pre

- briefing stage. See , e.g. , Pacitti v. Macy ’ s , 193 F.3d 766, 777 (3d Cir. 19 99). To state a procedural due process claim, a plaintiff must plead a deprivation of a protected interest without the process that was due. See Logan v. Zimmerman Brush Co. , 455 U.S. 422, 428 (1982). Bridgeforth seems to allege that he had a protected interest in his loans ’ not going into default (which prevents him from receiving further federal financial aid for his education). “ The hallmark of property . . . is an individual entitlement grounded in state law, which cannot be removed except ‘for caus e.’” Logan , 455 U.S. at 430 . Bridgeforth provided no information about the source of any right to his loans ’ not going into default, and none is apparent to us.
A lso, he does not have a property interest in receiving additional federal grants or loans. See Dejournett v. Block , 799 F.2d 430, 431

- 32 (8 th Cir. 1985). The District Court did not abuse its discretion in denying leave to amend this claim on the basis of futility. See Grayson v. Mayview State Hosp. , 293 F.3d 103, 112

- 13 (3d Cir. 2002)

. Beca use the District Court’s first decision on the due process claim withstands review, the District Court did not err in declining to consider the due process claim when Bridgeforth attempted to present it again in his amended complaint.6 Lastly, Bridgefort h did not state a claim for breach of contract. In relation to the breach of contract claim, in his amended complaint, Bridgeforth merely alluded to an “MPN” whose “terms . . . specify that [he] has a stated claim.” As the District Court explained in its first opinion in this case, it is unclear where Bridgeforth entered into the contract for his student loans

. In any event, whether he sought to proceed under Pennsylvania law (because the contract is with AES, a division of the Pennsylvania Higher Educat ion Assistance Agency) or another state’s law, the allegations are insufficient to state a claim for breach of contract. See , e.g. , Ware v. Rodale Press, Inc. , 322 F.3d 218, 225 (3d Cir. 2003) (describing a cause of action for breach of contract under Pen nsylvania law); VLIW Tech., L.L.C. v. Hewlett

- Packard Co. , 840 A.2d 606, 612 (Del. 2003) (describing a less demanding pleading standard for breach of contract under Delaware law). Also, the District Court did not abuse its discretion in declining to allow a second amendment for this or Bridgeforth’s other claims. See Grayson , 293 F.3d

at 112

- 14. For these reasons, there is no merit to Bridgeforth’s appeal from the District Court’s judgment. Accordingly, we will dismiss this appeal pursuant to 2 8 U.S .C. § 1915(e)(2)(B)(i).