CLD-141                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-4010
                                  ___________

                              WAYNE T. BAKER,
                                            Appellant

                                        v.

               JAMES T. VAUGHN CORRECTIONAL CENTER;
                         DONALD GLAGG, Inmate
                  ____________________________________

                 On Appeal from the United States District Court
                           for the District of Delaware
                            (D.C. Civil No. 10-0482)
                  District Judge: Honorable Leonard P. Stark
                  ____________________________________

      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 17, 2011

          Before: RENDELL, FUENTES AND SMITH, Circuit Judges

                          (Opinion filed April 19, 2011)

                                    _________

                                    OPINION
                                    _________

PER CURIAM

    Pro se appellant Wayne Baker appeals the District Court’s order dismissing his
complaint.1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary

review over the District Court’s order. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000). Because this appeal presents no substantial question, we will summarily affirm

the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       Baker filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against the James

T. Vaughn Correctional Center, where he is imprisoned, and Donald Glagg, his cellmate.

Baker alleged that Glagg attacked and severely injured him, and that the Correctional

Center then provided him with inadequate medical care. As a result, Baker claimed, he

will never again have full mobility in one leg. He sought money damages.

       The District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

The Court concluded that Glagg was not a state actor as required by § 1983, and that the

Correctional Center was immune from suit under the Eleventh Amendment. The Court

stated, however, that “it appears plausible . . . that Plaintiff may be able to articulate a

claim against alternative Defendants, and therefore, the Court will give Plaintiff an

opportunity to amend his pleading.”

       Baker then filed an amended complaint, but despite the District Court’s clear

guidance, he again named as defendants only Glagg and the Correctional Center. The

amended complaint reiterated the allegations from the original complaint, and urged the

District Court not to “complicate this complaint [so that Baker would] have to go to the



       1
              Baker also filed a motion for reconsideration under Rule 59 of the Federal
Rules of Civil Procedure, which the District Court denied on February 2, 2011. Because
Baker did not file a new or amended notice of appeal as to that order as required by Fed.
                                               2
U.S. Court of Appeals for the Third Circuit.” Given Baker’s apparent desire to stand on

his original claims, the District Court dismissed the amended complaint under

§ 1915(e)(2)(B) for the reasons detailed in its previous order — this time with prejudice.

Baker then appealed.

       We agree with the District Court’s determination that Baker’s action fails to state a

claim against either of the defendants. A § 1983 claim has two essential elements: (1)

the conduct complained of must be “committed by a person acting under color of state

law”; and (2) this conduct must “deprive[] a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States.” Kost v. Kozakiewicz, 1 F.3d

176, 184 (3d Cir. 1993) (internal quotation marks omitted). Glagg, a fellow prisoner, is a

private party. While a private party can qualify as a state actor when there “is a

sufficiently close nexus” between the state and the private party’s conduct, id., Baker has

alleged no such connection here. Baker has thus not stated a viable claim against Glagg.

       Baker’s claim against the Correctional Center also fails. Under the Eleventh

Amendment, the Correctional Center, a Delaware state prison, is immune from suit in

federal court. See, e.g., Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 144 (1993). While states can waive their Eleventh Amendment immunity,

see Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002),

Delaware has not done so, see Green v. Howard R. Young Corr. Inst., 229 F.R.D. 99, 102

(D. Del. 2005) (Jordan, J.). Moreover, although Congress can abrogate a state’s


R. App. P. 4(a)(4)(B)(ii), we lack jurisdiction to review it. See United States v. McGlory,
202 F.3d 664, 668 (3d Cir. 2000).
                                             3
sovereign immunity, it did not do so through the enactment of 42 U.S.C. § 1983, the

federal law under which Baker proceeds. See Quern v. Jordan, 440 U.S. 332, 345 (1979).

Accordingly, we agree that Baker’s § 1983 claims against the Correctional Center for

monetary damages are barred.

      We will thus summarily affirm the District Court’s order dismissing Baker’s

amended complaint. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.2




      2
              Baker also asked the District Court to issue subpoenas so that he could
obtain various medical records. We will affirm the District Court’s order denying these
requests.
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