ALD-185                                                       NOT PRECEDENTIAL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. FRANCIS 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.
       Kinley has previously 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-05496 (D.N.J. 2008), he brought a claim 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. He 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 appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s legal conclusions, Mitchell v. Horn, 

, 530 (3d Cir. 2003), and can affirm the District Court’s order on any ground

supported by the record. See Tourscher v. McCullough, 

, 240 (3d Cir.

1999). We may summarily affirm if the appeal presents no substantial question. See 3d

Cir. L.A.R. 27.4; I.O.P. 10.6.


                                              2
       Dismissal under 28 U.S.C. § 1915(e) is proper if a complaint is frivolous or fails to

state a claim upon which relief 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, 

, 1949 (2009)

(quoting Bell Atl. Corp. v. Twombly, 

, 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 unconstitutionally, noting only that he “feels” that that requirement

denies him his “constitutional right to due process.” Compl. 2. Accordingly, the District

Court was correct to dismiss the action. 1

       We are satisfied that amendment of Kinley’s Complaint would have been futile,

especially in light of the dismissal of his earlier attempt to bring this suit. The District

Court therefore properly dismissed without leave to amend. See Grayson v. Mayview

State Hosp., 

, 114 (3d Cir. 2002).

       As the appeal presents no substantial question, we will summarily affirm the

judgment below. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.




       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 appeal from that decision instead.
                                             3