                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1223
                                       ___________

                            PHILIBERT F. KONGTCHEU,
              on his own behalf and on behalf of minor children JK and PK

                                             v.

       RICHARD E. CONSTABLE, III, in his official capacity as Commissioner
       of the New Jersey Department of Community Affairs; THE NEW JERSEY
                DEPARTMENT OF COMMUNITY AFFAIRS (DCA)

                                        Philibert F. Kongtcheu,
                                                          Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.N.J. Civ. No. 2-12-cv-06872)
                       District Judge: Honorable Claire C. Cecchi
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 23, 2016
              Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges

                           (Opinion filed: December 21, 2016)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant Philibert F. Kongtcheu filed a pro se lawsuit against the New Jersey

Department of Community Affairs (“NJDCA”) and its then-commissioner, Richard E.

Constable III, in his official capacity (collectively, “Defendants”). The District Court

granted Defendants’ motion to dismiss, and Kongtcheu appealed. We will affirm.

                                             I.

       According to Kongtcheu, in July 2011, he was discharged from a hospital in

Hoboken to a nearby nursing home in Secaucus, due to lower-extremity paralysis caused

by Post-polio Syndrome.1 Shortly thereafter, NJDCA granted Kongtcheu’s request for

Section 8 voucher assistance so that he could afford to transition from the nursing home

to a community setting. But the transition stalled because Defendants, among other

things, (1) reduced the voucher’s bedroom allowance, (2) failed to adequately respond to

requests for information about utility allowances, potentially available rental units, and

the Section 8 Homeownership Program, (3) rejected Kongtcheu’s requests to either

modify or deem him exempt from the rental voucher’s price cap, and (4) failed to

negotiate rents with prospective landlords. Despite these obstacles, as of March 17,

2014, Kongtcheu had left the nursing home.2



1
 We accept as true all plausible allegations of fact in Kongtcheu’s operative pleading:
his second amended complaint, filed on December 29, 2014. See Baldwin v. Univ. of
Pittsburgh Med. Ctr., 636 F.3d 69, 73-74 (3d Cir. 2011).
2
 The address Kongtcheu used both when he filed the operative pleading and for this
appeal appears to be that of an apartment in Cambridge, Massachusetts. See
http://www.voxcambridge.com/. Kongtcheu stated in a letter to the Magistrate Judge that
                                             2
       Kongtcheu’s suit claimed that Defendants’ conduct not only thwarted his ability to

obtain suitable housing, but violated Title II of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12131, et seq., Section 504 of the Rehabilitation Act, 29 U.S.C.

§ 701, et seq., the Fair Housing Amendments Act of 1988 (“FHAA”), 42 U.S.C. § 3601,

et seq., the Electronic Signatures in Global and National Commerce Act, 15 U.S.C.

§ 7001, et seq., the Fourteenth Amendment, and the Olmstead integration mandate.3

Claims for “reckless endangerment” and “emotional distress” under New Jersey tort law

were also raised. Kongtcheu’s pleading requested both damages and equitable relief.

       Kongtcheu attempted to serve Defendants with process using a number of

methods, including facsimile (see ECF No. 10), email (see ECF No. 30-1), regular mail

(see ECF No. 10), and certified regular mail (see ECF No. 15). Since none of those

methods was prescribed by the Federal Rules of Civil Procedure for service in

Kongtcheu’s case, his multiple applications for entry of default were denied. See ECF

No. 14 and Clerk’s Quality Control Messages. A Magistrate Judge also denied, without

prejudice, Kongtcheu’s motion for appointment of pro bono counsel. See ECF No. 27.




he had been “in Massachusetts since the end of March 2014,” ECF No. 23, and averred in
an application for entry of default that his monthly rent was $2,900. See ECF No. 34-1.
3
  See Olmstead v. L.C., 527 U.S. 581, 587 (1999) (holding that, in certain situations, the
ADA requires “placement of persons with mental disabilities in community settings
rather than in institutions.”); see also Helen L. v. DiDario, 46 F.3d 325, 327 (3d Cir.
1995) (DPW violated the ADA when it required a paraplegic plaintiff to receive services
in a nursing home rather than in her own home through DPW’s attendant-care program).
                                               3
The Magistrate Judge determined that the factors we identified as pertinent in Tabron v.

Grace, 6 F.3d 147 (3d Cir. 1993), on balance did not favor granting Kongtcheu’s motion.

       Thereafter, Defendants filed a joint motion to dismiss the second amended

complaint under Fed. R. Civ. P. 12(b), which the District Court granted. The District

Court determined that Defendants were immune from suit for damages, under the

Eleventh Amendment. See ECF No. 39, pp. 8-9. The District Court also determined

that, while Kongtcheu’s requests for declaratory and injunctive relief against Constable

were not barred by the Eleventh Amendment, pursuant to Ex Parte Young, 209 U.S. 123

(1908), Kongtcheu nevertheless failed to state a viable federal claim through which he

could obtain those remedies. See ECF No. 39, pp. 9-16. In addition to dismissing

Kongtcheu’s federal claims, the District Court determined that it “lacks jurisdiction” over

any of Kongtcheu’s state law claims. ECF No. 39, p. 16 (citing 28 U.S.C. § 1367(c)).4

       The District Court dismissed all claims with prejudice except for Kongtcheu’s

claim under the FHAA against Constable, which was dismissed without prejudice. See

ECF No. 40. The District Court’s January 20, 2016 order of dismissal permitted

Kongtcheu 30 days to cure defects in the FHAA claim through a pleading amendment.

He appealed, see ECF No. 41, and did not file an amended complaint.

                                            II.


4
 Dismissal under § 1367(c) is discretionary, not mandatory. See Kach v. Hose, 589 F.3d
626, 650 (3d Cir. 2009). Kongtcheu does not challenge in his opening appellate brief the
District Court’s handling of his state law claims.

                                             4
       The District Court’s January 20, 2016 order appeared not to finally resolve all

claims as to all parties, so the Clerk of this Court gave notice that the appeal was

susceptible to dismissal for lack of appellate jurisdiction. Cf. Borelli v. Reading, 532

F.2d 950, 951-952 (3d Cir. 1976) (order dismissing a complaint without prejudice is

neither final nor appealable, unless the plaintiff cannot amend or declares his intention to

stand on his complaint). Kongtcheu responded to the Clerk’s notice: “I stand on the

complaint.” Kongtcheu’s response, coupled with his decision to let expire the District

Court’s deadline for amendment, is sufficient to confirm the finality of the proceedings

below and permit our exercise of appellate jurisdiction under 28 U.S.C. § 1291. See

Frederico v. Home Depot, 507 F.3d 188, 192 (3d Cir. 2007); Batoff v. State Farm Ins.

Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992).

                                             III.

       We review for abuse of discretion district court orders declining to enter default,

cf. Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000); Speiser, Krause &

Madole P.C. v. Ortiz, 271 F.3d 884, 886 (9th Cir. 2001), and denying motions to appoint

counsel, see Tabron, 6 F.3d at 157-58. We review de novo a district court’s decision to

grant a motion to dismiss pursuant to either Federal Rule of Civil Procedure 12(b)(1) or

12(b)(6). Free Speech Coal., Inc. v. Att’y Gen. of U.S., 677 F.3d 519, 529-30 (3d Cir.

2012). We may affirm the District Court’s judgment on any basis that the record

supports. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).


                                              5
       “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). When reviewing disposition of a

motion to dismiss, we “disregard rote recitals of the elements of a cause of action, legal

conclusions, and mere conclusory statements.” James v. City of Wilkes-Barre, 700 F.3d

675, 679 (3d Cir. 2012).

                                              IV.

       Kongtcheu’s arguments on appeal are undeveloped, perhaps even to the point of

waiver. See John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d

Cir. 1997) (“[A]rguments raised in passing . . . are considered waived.”). In any event,

we find his arguments unavailing; we address the primary ones below.

       First, we reject Kongtcheu’s argument that the District Court should have entered

default against Defendants. The applications for default all were appropriately denied

because Kongtcheu’s efforts at service did not comply with the Federal Rules of Civil

Procedure. See Fed. R. Civ. P. 4(e), (j)(2); see also N.J. Ct. Rule 4:4-3. Kongtcheu is

correct that, where the plaintiff is indigent, a district court should order service to be

made by a United States marshal, see Fed. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d).

However, the failure of the District Court to facilitate service in this case is not a failure

attributable to Defendants, neither of whom was properly served at any of the times

Kongtcheu applied for entry of default. We therefore find no abuse of discretion in the

District Court’s decision to allow Defendants to respond to Kongtcheu’s complaint.
                                               6
       Second, we find no abuse of discretion in the District Court’s October 17, 2014

decision to deny Kongtcheu’s motion for appointment of counsel without prejudice,

though we caution the District Court in the future to more carefully consider whether

there is a “limited supply of competent lawyers willing to do pro bono work” outside the

context of prisoner civil rights litigation. Cf. Tabron, 6 F.3d at 157. We acknowledge

Kongtcheu’s point that the District Court did not assess his counsel motion under 42

U.S.C. § 3613(b)(1)—a provision of the Fair Housing Act stating that “[u]pon application

by a person alleging a discriminatory housing practice . . . the court may appoint an

attorney for such person.” (emphasis added). Given Kongtcheu’s IFP status, the District

Court assessed the motion for counsel under 28 U.S.C. § 1915(e), using the non-

exhaustive list of factors identified in Tabron. Kongtcheu fails to explain why the

District Court would have reached a different conclusion had it assessed his motion under

§ 3613(b)(1), and no plausible explanation is otherwise apparent. See Zhu v.

Countrywide Realty Co., 148 F. Supp. 2d 1154, 1157 (D. Kan. 2001) (finding standard

for appointing counsel under 42 U.S.C. § 2000e-5(f)(1) instructive in applying

§ 3613(b)(1)); see also Ficken v. Alvarez, 146 F.3d 978, 979-80 (D.C. Cir. 1998)

(enumerating test to apply in ruling on a motion for counsel under § 2000e-5(f)(1)).

       Finally, although we question aspects of the District Court’s Eleventh Amendment

analysis, see United States v. Georgia, 546 U.S. 151, 159 (2006); see also Koslow v.

Pennsylvania, 302 F.3d 161, 171 (3d Cir. 2002) (holding that “if a state accepts federal

funds for a specific department or agency, it voluntarily waives sovereign immunity for
                                             7
Rehabilitation Act claims against the department or agency.”)5, we ultimately agree that

Kongtcheu failed to plausibly plead a viable federal claim, for the reasons outlined in the

District Court’s opinion. In particular, and despite the fact that the District Court

permitted Kongtcheu multiple opportunities to amend his complaint to clarify his

allegations, he failed to plausibly allege that any misconduct by Defendants was due to

Kongtcheu’s disability rather than his ineligibility for various programs and program-

requirement exemptions. We thus conclude that Kongtcheu’s requests for injunctive and

declaratory relief—the availability of each remedy dependent on the viability of an

underlying claim—were rightly rejected.6

                                                 IV.




5
 NJDCA notes on its website that its housing voucher program is federally funded. See
http://www.state.nj.us/dca/divisions/dhcr/offices/section8hcv.html.
6
  We agree with the District Court that Kongtcheu’s request for true equitable relief
against Constable individually was not, on its face, barred by the Eleventh Amendment.
See NCAA v. Governor of N.J., 832 F.3d 389, 394 n.3 (3d Cir. 2016); see also MCI
Telecomm. Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491, 506 (3d Cir. 2001).
       The District Court did not consider whether any request for equitable relief was
nevertheless rendered moot when, according to Kongtcheu’s allegations, he ceased
residing at the subject nursing home in March 2014. See Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690, 700 (3d Cir. 1996). Other filings of record indicate that Kongtcheu
has not even resided in New Jersey since late March of 2014. It thus appears that the
District Court would not have been able to provide him with effective injunctive or
declaratory relief. See O’Shea v. Littleton, 414 U.S. 488, 495-496 (1974) (“Past
exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief, however, if unaccompanied by any continuing, present adverse
                                              8
         Therefore, for the reasons stated above, we will affirm the judgment of the District

Court.




effects.”); see also Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam).
                                             9
