CLD-102                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-4002
                                     ___________

                          OTIS MICHAEL BRIDGEFORTH,
                                           Appellant

                                          v.

                           TD BANK; POOJA YADAV,
                                 Cus. Serv. Rep
                     ____________________________________

                     Appeal from the United States District Court
                              for the District of Delaware
                             (D.C. Civil No. 10-cv-00472)
                     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, 2011

              Before: RENDELL, FUENTES and SMITH, Circuit Judges

                          (Opinion filed February 14, 2011)
                                      _________

                             OPINION OF THE COURT
                                   _________

PER CURIAM

      Otis Michael Bridgeforth filed a complaint pursuant to 42 U.S.C. § 1983 against a

bank and one of its employees, alleging that on May 29, 2010, he was prevented from
opening a student checking account. He claimed that the defendants intentionally

inflicted emotional distress and discriminated against him on the basis of “race, color, and

sex” when they found his New York driver‟s license, student identification card, and a

piece of mail he received insufficient to verify his address. He alleged that they lied to

him when they told him that they only accepted proof of car registration or insurance, a

utility bill, a pay stub, or a letter from an employer to verify an address. He alleged that

he was later able to open the account over the telephone with the help of a representative

who explained that he could have opened his account in the bank had he presented a

Social Security card with his student identification card and a piece of recent mail.

Bridgeforth requested thirty million dollars in damages and the termination of bank

employees.

       The District Court dismissed the complaint as frivolous pursuant to 28 U.S.C. §

1915(e)(2). The District Court also held that amendment would be futile. Bridgeforth

appeals.

       We have jurisdiction over Bridgeforth‟s appeal pursuant to 28 U.S.C. § 1291. We

exercise plenary review over the dismissal of his claims. See Allah v. Seiverling, 

, 223 (3d Cir. 2000). We review the denial of leave to amend for abuse of

discretion. See Lum v. Bank of Am., 

, 223 (3d Cir. 2004).

       Bridgeforth purported to proceed under 42 U.S.C. § 1983. As the District Court

noted, to state a claim under § 1983, a plaintiff “must allege the violation of a right

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secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins,

, 48 (1988). Neither defendant was acting under color of state law. See 

a defendant must be “clothed with the authority of state law” to be acting

under color of state law).

       We also note that Bridgeforth included no allegations in his complaint from which

discrimination can be inferred. It is possible that Bridgeforth‟s claims could be

interpreted as an attempt to plead a cause of action under 42 U.S.C. § 1981, which

prohibits race discrimination in making and enforcing contracts. See Brown v. Philip

Morris, Inc., 

, 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 include the right to make or enforce

contracts. 

(citations omitted). However, Bridgeforth merely made a bare claim

that the defendants‟ actions were related to his race and stated that the defendants‟ actions

seemed “shady” and “immature.” A well-pleaded complaint must contain more than

“„labels or conclusions.‟” See Ashcroft v. Iqbal, 

, 1939 (2009) (quoting

Bell Atl. Corp. v. Twombly, 

, 555 (2007)).

       Because Bridgeforth stated no federal claim, the District Court did not err in

declining to consider the claim for intentional infliction of emotional distress under state

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law. See 28 U.S.C. § 1367(c); De Asencio v. Tyson Foods, Inc., 

, 311 (3d

Cir. 2003).

       For these reasons, the District Court properly dismissed Bridgeforth‟s complaint.

We also conclude that the District Court did not abuse its discretion in denying

Bridgeforth leave to amend on the basis of futility. See Grayson v. Mayview State Hosp.,

, 112-13 (3d Cir. 2002). Because this appeal does not have an arguable basis

in fact or law, we will dismiss it appeal pursuant to 28 U.S.C. ' 1915(e)(2)(B). See

Neitzke v. Williams, 

, 325 (1989).




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