                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).



                                              4
            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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