CLD-327                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 13-2017
                                  ___________

                          DENNIS LEE MAXBERRY,
                                 Appellant

                                        v.

                     SALLIE MAE EDUCATION LOANS
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                          (D.C. Civil No. 3:13-cv-00509)
                 District Judge: Honorable Richard P. Conaboy
                  ____________________________________

      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
                                  July 11, 2013
          Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                          (Opinion filed: July 25, 2013)
                                   _________

                                   OPINION
                                   _________
PER CURIAM

       Dennis Lee Maxberry, proceeding pro se and in forma pauperis, appeals from the

District Court’s dismissal of his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For

the reasons set forth below, we will summarily affirm.1

                                             I.

       The facts being well-known to the parties, we set forth only those pertinent to this

appeal. Maxberry’s complaint is difficult to comprehend but it appears to allege that

Sallie Mae breached its contract with him regarding his student loans to attend the Keller

Graduate School in Milwaukee, Wisconsin by declaring him to be in default on the loans

and then referring the matter to arbitration before Maxberry actually breached the

contract. Maxberry also seems to allege that Defendant Sallie Mae relied upon hearsay

evidence and failed to give him notice in determining that he defaulted on his student

loans, and that this prevented him from getting his grades and passing his classes at

school. Maxberry also alleges that this caused him to be dismissed from school even

though he attended class every night and paid $66,000.00 in tuition which he received

from Defendant Sallie Mae. He also seems to aver that after he was dismissed from the

school, he was immediately charged for the credits he took. Maxberry seeks relief under

42 U.S.C. §§ 1983, 1985, and 1986 as well as Title IX of the Education Act of 1972, Title




1
  We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We may
summarily affirm a decision of the District Court if the appeal does not raise a substantial
issue. 3d Cir. LAR 27.4; I.O.P. 10.6.
                                             2
VI of the Civil Rights Act of 1964, and § 504 of the Rehabilitation Act of 1973.2 The

complaint also appears to contain state law breach of contract and fraud actions.

       The District Court dismissed all of Maxberry’s federal claims with prejudice and

dismissed the state law claims without prejudice “so that Plaintiff can refile them in the

proper court.”3 Maxberry filed a timely notice of appeal.

                                             II.

       We exercise plenary review of the District Court’s decision to dismiss Maxberry’s

claims pursuant to § 1915(e)(2)(B)(ii). Allah v. Seiverling, 

, 223 (3d Cir.

2000). In reviewing a district court’s dismissal for failure to state a claim, “we accept as

true all well-pled factual allegations in the complaint and all reasonable inferences that

can be drawn from them, and we affirm the order of dismissal only if the pleading does

not plausibly suggest an entitlement to relief.” Fellner v. Tri-Union Seafoods, L.L.C.,

, 242 (3d Cir. 2008). A district court need not permit amendment of a

complaint that is vulnerable to dismissal if amendment would be futile. See, e.g., Phillips

v. Cnty. of Allegheny, 

, 236 (3d Cir. 2008). We may affirm on any basis

supported by the record. See, e.g., Oss Nokalva, Inc. v. European Space Agency, 

, 761 (3d Cir. 2010). We are of course mindful that a pro se litigant’s complaint

is to be construed liberally. See Haines v. Kerner, 

, 520-21 (1972).


2
  Maxberry checked the box labeled “False Claims Act” on his civil cover sheet but the
text of the complaint does not contain any related matter. As neither the District Court
nor Maxberry made any subsequent mention of this claim, we will not discuss it here.
3
  The District Court adopted the Magistrate Judge’s report and recommendation in an
order docketed on April 4, 2013. For simplicity all lower court proceedings mentioned
herein are attributed to the District Court.
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       To survive a motion to dismiss, a complaint – even a pro se complaint – “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 

, 663 (2009) (quoting Bell Atl.

Corp. v. Twombly, 

, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. The facts must demonstrate that

the Plaintiff is entitled to relief, not show just a “mere possibility of misconduct.” Fowler

v. UPMC Shadyside, 

, 211 (3d Cir. 2009) (quoting Iqbal at 679). “[A]n

unadorned, the-defendant-unlawfully-harmed-me accusation” is not sufficient for a

complaint to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Iqbal at 678.

       After analyzing Maxberry’s claims individually, the District Court found that in

each instance Maxberry had failed to state a claim and that amendment would be futile.

We agree with the District Court’s conclusions, either for the same or substantially

similar reasons as given in the Report and Recommendation.

       We affirm the prejudicial dismissal of Maxberry’s claims pursuant to § 1983, Title

IX, and § 504 of the Rehabilitation Act. While we need not restate the analysis found in

the Report and Recommendation, we note that these claims are valid only against a state

actor or entity receiving federal assistance, and that Sallie Mae, as a publicly traded

corporation, cannot satisfy these requirements. The District Court therefore properly

found that amendment would be futile.

       We also affirm the dismissal with prejudice of Maxberry’s Title VI and § 1985(3)

claims. Maxberry’s first mention of the fact that he is African-American, and thus a

                                                4
member of a protected class, occurs in the brief he submitted to this Court upon being

notified of possible summary action. He does not allege that Sallie Mae treated him

differently than similarly-situated borrowers who were not members of a protected class

or that Sallie Mae conspired with anyone before declaring him to be in default. Rather,

Maxberry argues only in his brief that “Sallie Mae could have notified the plaintiff earlier

that they would not allow him to attend but didn’t. Instead they allowed the plaintiff to

attend and then did not give ample grades for his work; which ran up the plaintiff’s loan

amount to that of the present loan amount, and the past in a manner of compulsion.”

Appellant’s Brief at 3.

       Even assuming the truth of these allegations, the pleading requirements of

Twombly and Iqbal are not met. Neither the complaint nor the brief adduces any

evidence of racially-driven concerted action or animus. Furthermore, we have no reason

to believe that an amended complaint would survive a motion to dismiss. Maxberry’s

past litigation practices indicate that he is prone to making incomprehensible and

unsubstantial filings, and the brief he submitted in this appeal confused rather than

clarified the claims raised in his complaint. While we are “mindful that direct evidence

of a conspiracy is rarely available and that the existence of a conspiracy must usually be

inferred from the circumstances..., the rule is clear that allegations of a conspiracy must

provide some factual basis to support the existence of the elements of a conspiracy:

agreement and concerted action.” Capogrosso v. Supreme Ct. of N.J., 

, 184-

85 (3d Cir. 2009) (quoting Crabtree v. Muchmore, 

, 1481 (10th Cir.

1990)). Nothing in Maxberry’s filings suggests agreement, concerted action, or

                                              5
discriminatory intent on the part of Sallie Mae. Therefore we agree with the District

Court that amendment would be futile.

       A claim under § 1986 cannot survive without a valid § 1985(3) claim. See Rogin

v. Bensalem Twp., 

, 696 (3d Cir. 1980); Brawer v. Horowitz, 

,

841 (3d Cir. 1976). Becausee Maxberry’s § 1985(3) claim was dismissed with prejudice,

the District Court was correct in dismissing his § 1986 claim with prejudice.

       The District Court found that it did not have diversity jurisdiction under 28 U.S.C.

§ 1332 because “neither Plaintiff nor Defendant Sallie Mae is a citizen of

Pennsylvania….” This is incorrect, as diversity jurisdiction is not dependent on either

party’s being a resident of the forum state. Rather, § 1332(a)(1) provides that “[t]he

district courts shall have original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000…and is between citizens of different

states.” Maxberry’s complaint requests $1 million in damages. Assuming that the

required amount of money is indeed in controversy, we conclude that the District Court

likely erred in determining that it did not have diversity jurisdiction.

       We can affirm the District Court’s dismissal without prejudice of Maxberry’s state

law claims on other grounds, however. Fed. R. Civ. P. 8(a)(2) requires a pleading to

contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” As stated above, a complaint “must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 663

(quoting Bell Atl. Corp, 550 U.S. at 570). The allegations “must not be ‘so undeveloped

that [the complaint] does not provide a defendant the type of notice of claim which is

                                               6
contemplated by [Fed. R. Civ. P. 8].’” Umland v. Planco Fin. Servs., Inc., 

,

64 (3d Cir. 2008) (quoting Phillips v. County of Allegheny, 

, 233 (3d Cir.

2008)). In this case, portions of Maxberry’s complaint are difficult to comprehend and

border on being unintelligible. Even if the facts Maxberry alleged in the complaint are

taken as true, they do not amount to a plausible claim under any cause of action. The

complaint therefore does not comply with the requirements of Rule 8 or Twombly.

Accordingly, the District Court did not err in dismissing the state law claims without

prejudice.

                                            III.

There being no substantial question presented on appeal, we will summarily affirm.




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