                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2007

Atamian v. Burns
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4372




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Recommended Citation
"Atamian v. Burns" (2007). 2007 Decisions. Paper 1068.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1068


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BLD-205                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-4372
                                   ________________

                             MD GABRIEL G. ATAMIAN,
                                              Appellant

                                            vs.

                              CHRISTOPHER D. BURNS
                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of Delaware
                             (D.C. Civ. No. 06-cv-00196)
                      District Judge: Honorable Sue L. Robinson
                     _____________________________________

       Submitted For Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
           Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 26, 2007
                  Before: McKee, Fuentes and Weis, Circuit Judges.

                                  (Filed:May 24, 2007 )
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

              Appellant, Gabriel Atamian, appeals the District Court’s order dismissing

his pro se civil rights complaint. Upon consideration of the record and Atamian’s

submission to this Court, we conclude that the appeal presents no arguable issues of fact

                                            1
or law. Thus, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).

              In March 2006, Atamian filed the underlying complaint pursuant to Title VI

of the Civil Rights Act of 1964, alleging that defendant Christopher Burns, DDS, refused

to render specialized dental care to him on account of his nationality and his status as a

senior citizen. Atamian also asserted numerous supplemental state law claims. He sought

compensatory damages in the amount of $250,000, as well as punitive damages.

              Atamian was granted leave to proceed with his complaint in forma pauperis.

In a Memorandum Order issued on May 24, 2006, the District Court concluded that the

federal claims Atamian asserted against Dr. Burns were subject to dismissal pursuant to

28 U.S.C. § 1915(e)(2)(B), given Atamian’s failure to allege in his pleadings that he was

denied benefits or subject to discrimination under any program or activity receiving

federal financial assistance as required by the Civil Rights Act. See 42 U.S.C. § 2000d.

To the extent Atamian sought to pursue a claim under the Age Discrimination Act, the

District Court noted that his pleadings suffered from the same fatal deficiency. See 42

U.S.C. § 6102. Finally, insofar as Atamian may have been attempting to raise a claim

under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the

District Court concluded that Atamian failed to allege that he is a disabled person within

the meaning of the ADA. Accordingly, the District Court determined that Atamian’s

claims presented no arguable basis in law or fact, and that dismissal under §

1915(e)(2)(B) was appropriate. The court further declined to exercise jurisdiction over



                                              2
his supplemental state law claims. See De Asencio v. Tyson Foods, Inc., 342 F.3d 301,

309 (3d Cir. 2003).

              Atamian filed a timely motion seeking to have the District Court reconsider

its order of dismissal. The primary argument advanced by Atamian in support of

reconsideration was his contention that the District Court erred in utilizing § 1915(e) to

dismiss the complaint given the fact that Atamian is not a prisoner. The District Court

denied Atamian’s reconsideration motion in an order entered on September 26, 2006.

The court stated that the screening procedures set forth in 28 U.S.C. § 1915(e) apply to in

forma pauperis complaints filed by prisoners and non-prisoners alike and, thus,

reconsideration was not warranted. The court further noted that Atamian’s motion failed

to set forth any intervening chance in controlling law or new evidence that was not

available when the dismissal order was entered, and that reconsideration was not needed

to correct a clear error of law or fact or to prevent a manifest injustice. See Max’s

Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).




                                              3
              Atamian timely filed this appeal. We have jurisdiction pursuant to 28

U.S.C. § 1291.1 Having reviewed the record and Atamian’s submission to this Court

wherein he argues against summary disposition, we must agree with the District Court

that the federal claims Atamian asserted against Dr. Burns were subject to dismissal

pursuant to 28 U.S.C. § 1915(e)(2)(B). As the District Court correctly determined,

Atamian failed to allege that he was denied benefits or was subject to discrimination

under any program or activity receiving federal financial assistance as required by the

Civil Rights and Age Discrimination Acts, see 42 U.S.C. §§ 2000d and 6102, and he

likewise failed to allege that he is a disabled person within the meaning of the ADA. See

42 U.S.C. § 12101 et seq. We further conclude that the District Court did not abuse its

discretion in denying Atamian’s reconsideration motion, see Max’s Seafood Café v.

Quinteros, 176 F.3d at 673, as the provisions of § 1915(e) apply to all in forma pauperis

complaints, not simply those filed by prisoners. See, e.g., Grayson v. Mayview State

Hosp., 293 F.3d 103, 114 n. 19 (3d Cir. 2002)(non-prisoner indigent plaintiffs are “clearly



              1
               “Generally, an order which dismisses a complaint without
prejudice is neither final nor appealable because the deficiency may be
corrected by the plaintiff without affecting the cause of action. Only if the
plaintiff cannot amend or declares his intention to stand on his complaint
does the order become final and appealable.” Borelli v. City of Reading, 532
F.2d 950, 951-52 (3d Cir.1976). In the instant case, the District Court
specifically determined that any amendment to the complaint would be futile.
See Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
Thus, we have appellate jurisdiction over the appeal.
                                             4
within the scope of § 1915(e)(2)”). See also Lopez v. Smith, 203 F.3d 1122, 1129 (9 th

Cir. 2000)(§ 1915(e) applies to all in forma pauperis complaints, not just those filed by

prisoners). We have considered the other arguments advanced by Atamian and reject

them without further discussion.

              Given the foregoing, we will dismiss the instant appeal pursuant to 28

U.S.C. § 1915(e)(2)(B), as it is lacking in legal merit. Neitzke v. Williams, 490 U.S. 319

(1989).




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