NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3441
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MONSERRATE ZAPATA,
Appellant
v.
PECO; PHILADELPHIA ELECTRIC COMPANY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 17-cv-03699)
District Judge: Honorable Joseph F. Leeson, Jr.
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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 20, 2018
Before: SHWARTZ, KRAUSE and FISHER, Circuit Judges
(Opinion filed February 21, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Pro se appellant Monserrate M. Zapata appeals the District Court’s orders
dismissing his complaint and denying his motion for reconsideration. We will affirm the
District Court’s judgment.
In September 2017, Zapata filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983 in the United States District Court for the Eastern District of Pennsylvania
against the Philadelphia Electric Company (“PECO”). Zapata alleges that PECO violated
his Fourteenth Amendment due process and equal protection rights when it issued two
“shut off notices” on October 4, 2016, and July 11, 2017, because Zapata failed to give
PECO access to inspect its meter. He claims that he never denied PECO access to the
meter and, in fact, replied to PECO that “upon advance notice that [he] would be at his
home, or will have someone at home to open the doors so that PECO could inspect [their]
electric meter.” Zapata also contends that the meter is functional, that he is billed
excessively, and that his monthly bills, including additional charges incurred in
connection with a “shut off,” could result in his losing his home.
The District Court dismissed Zapata’s complaint pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii), concluding that PECO is not a state actor for purposes of § 1983, and
that Zapata had failed to state a constitutional violation. In October 2017, Zapata filed a
“Petition for Review of the Memorandum and Order of the U.S. District Court 9/14/17,”
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which the District Court construed as a motion for reconsideration and subsequently
denied. Zapata appeals.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the
District Court’s sua sponte dismissal under 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state
a claim. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e accept all
factual allegations as true [and] construe the complaint in the light most favorable to the
plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting
Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). We review the
District Court’s denial of the motion for reconsideration for an abuse of discretion. See
Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir.
1999).
We agree with the District Court’s disposition of this case. To assert a claim
under § 1983, a plaintiff “must establish that [he] was deprived of a federal constitutional
or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). As
Zapata acknowledged in his complaint, PECO is a “corporate structure.” SEC filings1
reveal that Exelon Corporation is a registered public utility holding company and that
PECO is an operating company wholly owned by Exelon. In virtually identical
circumstances, the Supreme Court held that a privately owned and operated Pennsylvania
1
We may take judicial notice of these filings. See Schmidt v. Skolas, 770 F.3d 241, 249
(3d Cir. 2014).
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utility corporation was not a state actor in connection with its decision to shut off an
individual’s electricity. Jackson v. Metro. Edison Co., 419 U.S. 345, 358 (1974). Zapata
did not plead anything in his complaint to differentiate his case from Jackson.
In his appellate brief, Zapata argues that PECO was acting in accordance with
“State law 129.”2 However, “[t]he mere fact that a business is subject to state regulation
does not by itself convert its action into that of the State.” Id. at 350; see also Rendell-
Baker v. Kohn, 457 U.S. 830, 842 (1982) (“That a private entity performs a function
which serves the public does not make its acts state action.”); Crissman v. Dover Downs
Entm’t Inc., 289 F.3d 231, 243 (3d Cir. 2002) (“regulation – even detailed regulation, as
we have here – does not equate to state action,” nor does “the flow of funds . . . implicate
the state in private activity”). Accordingly, Zapata cannot establish a claim under § 1983.
Finally, the District Court did not abuse its discretion in denying Zapata’s motion
for reconsideration because he did not establish any bases for reconsideration. See Max’s
Seafood Café, 176 F.3d at 677.
For the foregoing reasons, we will affirm the District Court’s judgment.
2
Act 129 of 2008 amended Pennsylvania’s Public Utility Code for the purpose of
reducing energy consumption and demand by setting in motion a multi-phase
implementation process that addressed electric distribution companies and default service
provider responsibilities, conservation service providers, smart meter technology, time-
of-use rates, real-time pricing plans, default service procurement, market misconduct,
alternative energy sources, and cost recovery. See Romeo v. Pa. Pub. Util. Comm’n, 154
A.3d 422, 424 (Pa. Commw. Ct. 2017) (discussing Act of October 15, 2008, P.L. 1592,
No. 2008–129).
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