UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7007
KHALIFAH IMAN WHITNER,
Plaintiff - Appellant,
v.
UNITED STATES; FIDELITY INVESTMENTS; J.P. MORGAN & CHASE
N.A.; FIRST PLACE BANK; BANK OF TOKYO MITSUBISHI UFJ LTD;
COMERICA BANK; BANK OF AMERICA; STATE OF MICHIGAN; LARRY
WHITNER; VENUS WHITNER; WALTER WHITNER; DELANO WRIGHT;
ANNURAL WHITNER; HIROSHI KOJIMA,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:12-cv-00480-CMH-IDD)
Submitted: October 31, 2012 Decided: November 7, 2012
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Khalifah Iman Whitner, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Khalifah Iman Whitner appeals the district court’s
order dismissing her civil action filed under 42 U.S.C. §§ 1981,
1983 (2006), 28 U.S.C.A. § 1346(b) (West 2006 & Supp. 2012), and
5 U.S.C. § 702 (2006) for damages and injunctive relief, and its
denial of her motions for emergency injunctive relief.
We affirm.
After review of the record and Whitner’s appellate
brief, we conclude that the district court dismissed Whitner’s
action pursuant to 28 U.S.C. § 1915(e)(2)(B) (2006), which
requires a district court to dismiss those civil actions filed
in forma pauperis that are frivolous or fail to state claim on
which relief may be granted. A claim is frivolous when it lacks
an arguable basis in law or fact. Neitzke v. Williams, 490 U.S.
319, 322-23, 325 (1989). We review the dismissal of a claim as
frivolous for abuse of discretion. Nagy v. FMC Butner, 376 F.3d
252, 254-55 (4th Cir. 2004). The dismissal of a claim for
failure to state a claim on which relief may be granted is
reviewed de novo. Slade v. Hampton Rds. Reg’l Jail, 407 F.3d
243, 248 (4th Cir. 2005). Although a pro se litigant’s
pleadings are to be construed liberally, Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978), her complaint must contain
factual allegations sufficient “to raise a right to relief above
the speculative level” and that “state a claim to relief that is
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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007). This “plausibility standard requires a
plaintiff to demonstrate more than a sheer possibility that a
defendant has acted unlawfully.” Francis v. Giacomelli,
588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks
omitted). She must articulate facts that, when accepted as
true, demonstrate she has stated a claim entitling her to
relief. Id.
Whitner’s allegations fail to state a plausible claim
for relief under § 1981 against any named Defendant because she
does not allege facts sufficient to show that any Defendant
intentionally discriminated against her on the basis of race
concerning any of the activities enumerated in 42 U.S.C.
§ 1981(a). See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
7 F.3d 1085, 1087 (2nd Cir. 1993) (per curiam) (listing the
elements of a claim for relief under § 1981). Whitner’s
allegations against all Defendants except the United States and
the State of Michigan also fail to state plausible claims for
relief under 42 U.S.C. § 1983 for constitutional violations, as
the complaint does not allege facts establishing any basis for
concluding these Defendants took any action fairly attributable
to the state. See Mentavlos v. Anderson, 249 F.3d 301, 310 (4th
Cir. 2001) (noting that the deeds of ostensibly private
organizations and individuals may be treated as having occurred
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under color of state law for purposes of § 1983 if “there is
such a close nexus between the State and the challenged action
that seemingly private behavior may be fairly treated as that of
the State itself” (internal quotation marks omitted)).
Additionally, insofar as Whitner’s allegations are
meant to raise claims under § 1983 against the United States and
the State of Michigan, such claims are frivolous. Although the
Supreme Court has recognized a cause of action against
individual federal officers who violate a plaintiff’s
constitutional rights, Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Whitner has not
named any such officials as Defendants in this case, and this
cause of action does not extend to such claims advanced against
the United States. Further, the State of Michigan has not
consented to be sued for civil rights violations in federal
court, thereby waiving its immunity under the Eleventh
Amendment, and there is no indication in this case that such
immunity from suit has in any way been abrogated by Congress.
See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55-57 (1996)
(explaining that Congress’ intent to abrogate the immunity of a
state must be clear); Abick v. Michigan, 803 F.2d 874, 877
(6th Cir. 1986) (noting that the state of Michigan has not
consented to civil rights suits in federal court).
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Whitner’s complaint also invokes 28 U.S.C.A.
§ 1346(b), the jurisdictional grant of the Federal Tort Claims
Act (“FTCA”), and 5 U.S.C. § 702, a provision of the
Administrative Procedure Act (“APA”), as bases for relief.
Section 1346(b)(1) grants the federal district courts
jurisdiction over a certain category of claims for which the
United States has waived its sovereign immunity and rendered
itself liable. 28 U.S.C.A. § 1346(b)(1); FDIC v. Meyer,
510 U.S. 471, 477 (1994). Whitner’s claims against the United
States, however, do not fall within this category of claims
because Whitner fails to allege facts sufficient to show that
the United States, if a private person, would be liable to her
in tort. See Meyer, 510 U.S. at 477 (listing the six elements
necessary for a cognizable claim under § 1346(b)). We further
conclude that Whitner’s allegations fail to state any plausible
basis for granting her relief pursuant to the APA, as she fails
to identify any final agency action entitling her to review in
this court. See 5 U.S.C. § 704 (2006) (“Agency action made
reviewable by statute and final agency action for which there is
no other adequate remedy in a court are subject to judicial
review.”); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882
(1990) (explaining that it is the plaintiff’s burden to identify
specific federal conduct and explain how it qualifies as “final
agency action”).
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Finally, as Whitner’s claims do not plausibly entitle
her to relief or lack a basis in law, we conclude that the
district court did not abuse its discretion in denying her
motions for emergency injunctive relief, which we construe as
motions for preliminary injunctions. See Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008) (listing the four
elements for entitlement to relief in the form of a preliminary
injunction); WV Ass’n of Club Owners & Fraternal Servs., Inc. v.
Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (stating standard of
review).
Accordingly, although we grant leave to proceed in
forma pauperis, we affirm the district court’s judgment.
We deny as moot Whitner’s motion seeking waiver of court filing
fees. We deny her motions to transfer the case, for injunctive
relief pending appeal, for the court to serve the notice of
appeal on Defendants, to expedite decision, and seeking leave to
file DVD/Video exhibits. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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