             Case: 12-13115   Date Filed: 01/10/2013   Page: 1 of 4

                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 12-13115
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:11-cv-03743-WBH



LAVEL ELIJAH JOHNSON,


                                                              Plaintiff-Appellant,

                                      versus

REGIONS MORTGAGE,
GEHEREN FIRM, P.C.,
JOE TERRILL,
Vice President of Regions Mortgage,
W. ANTHONY COLLINS,
PATRICK J. GEHEREN,

                                                            Defendant-Appellee.

                        ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                              (January 10, 2013)
                 Case: 12-13115   Date Filed: 01/10/2013   Page: 2 of 4

Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.


PER CURIAM:

      Appellant Lavel Johnson appeals the district court’s grant of Regions

Mortgage et al.’s (“Regions”) motion to dismiss his complaint for failure to state a

claim. On appeal, he argues that his consent was required in order for a magistrate

judge to consider the motion to dismiss, and that he did not consent. He also

argues that the district court should not have denied his motion for leave to amend

his complaint.

      “We review for abuse of discretion the treatment by a district court of a

report and recommendation of a magistrate judge.” Stephens v. Tolbert, 471 F.3d

1173, 1175 (11th Cir. 2006). However, we do not generally consider issues raised

for the first time in an appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d

1324, 1331 (11th Cir. 2004) (citing Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir.

1994)).

      We review de novo a district court’s grant of a motion to dismiss under

12(b)(6) for failure to state a claim. Am. Dental Ass’n v. Cigna Corp., 605 F.3d

1283, 1288 (11th Cir. 2010). We generally review the denial of a motion to

amend a complaint for an abuse of discretion, but we review questions of law de



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novo. Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1291

(11th Cir. 2007) (citations omitted). We have held that a district court may

properly deny leave to amend a complaint under Rule 15(a) when the amendment

would be futile. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir.

2004) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d

222 (1962)).

      Under 28 U.S.C. § 1331, a district court has original jurisdiction of all civil

actions that arise under the Constitution, laws, or treaties of the United States. 28

U.S.C. § 1331. To state a claim under 42 U.S.C. § 1983, a party needs to show

that it has been deprived of a right given under the Constitution or under the laws

of the United States, and the deprivation was committed under color of state law.

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985, 143

L. Ed. 2d 130. (1999). “[M]erely private conduct, no matter how discriminatory

or wrongful” is not covered under 42 U.S.C. § 1983. Id. at 50, 119 S. Ct. at 985

(quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S. Ct. 2777, 2785, 73 L. Ed.

2d 534 (1982)).

      We do not need to consider Johnson’s argument that the magistrate judge

lacked authority to consider the motion to dismiss and issue a report and

recommendation because Johnson raises this issue for the first time on appeal. See


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Access Now, Inc., 385 F.3d at 1331. Moreover, we conclude that the district court

did not abuse its discretion in denying the motion for leave to amend because the

proposed amended complaint does not allege any violations of federal statutes,

and it fails to state a claim for constitutional violations under 42 U.S.C. § 1983

because it alleges only private conduct. Am. Mfrs. Mut. Ins. Co., 526 U.S. at 49-

50, 119 S. Ct. at 985. Because none of Johnson’s allegations state a claim that

arises under federal law, the district court would lack subject matter jurisdiction

over Johnson’s proposed amended complaint and amendment would be futile. See

Hall, 367 F.3d at 1262-63; 28 U.S.C. § 1331. Accordingly, we affirm the district

court’s judgment of dismissal.

      AFFIRMED.




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