                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 09-12812         ELEVENTH CIRCUIT
                                                   JANUARY 19, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                     ACTING CLERK

                   D. C. Docket No. 08-60999-CV-WPD

CARL SHELL,


                                                           Plaintiff-Appellant,

                                  versus

DAVID FOULKES,

                                                          Defendant-Appellee,

MONICA FOULKES,

                                                                   Defendant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (January 19, 2010)

Before EDMONDSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:

      Carl Shell appeals the district court’s order dismissing his 42 U.S.C. § 1983

civil rights complaint. After review we affirm.

                                I. BACKGROUND

A.    Shell’s Complaint

      On June 30, 2008, Shell filed this pro se § 1983 action against Foulkes

alleging that Foulkes deprived him of a vested property interest by terminating his

lease without good cause. According to exhibits attached to Shell’s complaint,

Shell entered into a one-year lease with Foulkes to rent a unit that was subsidized

by the Section 8 tenant-based assistance rental certificate program from March 1,

1998 until February 28, 1999. The lease provided that it would automatically

renew each year. Under the Section 8 certificate program, the owner of the rental

unit enters into a housing assistance contract with the local housing authority, and

the housing authority pays housing assistance payments to the unit owner. The

housing authority must approve the lease between the Section 8 tenant and the unit

owner.

      An addendum to Shell’s lease laid out the Section 8 requirements. Among

other things, the lease could be terminated by either the unit owner or the tenant.

The grounds upon which the unit owner could terminate the lease included, inter



                                          2
alia, “[v]iolation of Federal, State, or local law that imposes obligations on the

tenant in connection with the occupancy or use of the contract unit and the

premises,” and “[o]ther good cause.” Other good cause included “[a] business or

economic reason for termination of the tenancy (such as sale of the property,

renovation of the unit, desire to rent the unit at a higher rental).” However, it is

expressly provided in the addendum that nonpayment of the housing assistance

payment by the housing authority was not grounds for termination of the tenancy.

The unit owner was permitted to evict a tenant from the unit by instituting a court

action.

      In a letter dated April 29, 2004, Foulkes notified Shell that the lease would

not be renewed because Foulkes intended to make renovations to the apartment.

Foulkes gave Shell sixty days to vacate the unit. Foulkes sent a copy of the letter

to the local housing authority, the Hollywood Authority (“HHA”). On July 20,

2004, when Shell failed to vacate the premises after the 60 days expired, Foulkes

gave Shell a three-day notice to either pay rent or vacate the premises. Foulkes

sent a copy of this notice to the HHA.

      When Shell neither paid nor vacated, Foulkes filed a complaint for tenant

eviction in Broward County Court. On August 3, 2004, the Broward County Court

ruled in Foulkes’s favor, and Shell was evicted on August 19, 2004.



                                            3
      On September 23, 2004, the HHA notified Shell by letter that his Section 8

housing assistance benefits were terminated, pursuant to 24 C.F.R. § 982.552(b),

which requires that assistance be terminated if the tenant has been “evicted from

housing assisted under the program for serious violations of the lease.” The HHA

letter explained that Shell’s eviction was “based upon [his] refusal to vacate the

premises after the landlord terminated the lease as well as other lease violations.”

      On December 15, 2004, a hearing officer upheld the HHA’s decision to

terminate housing assistance benefits. Specifically, the hearing officer found that,

after owner Foulkes gave Shell and the HHA the sixty-day notice of lease

termination to do renovations on the unit, Shell requested a housing assistance

payment to lease a new unit. However, Shell looked at only one unit and

continued to live in Foulkes’s apartment beyond the sixty days. Foulkes had Shell

evicted for nonpayment of rent. The HHA paid benefits until the sixty-day period

expired on July 1, 2004. The hearing officer concluded that Shell had “failed to

show why he could not find a new unit from May to June[,] [l]eaving the Landlord

to file for eviction,” and that the eviction required mandatory termination of

assistance under 24 C.F.R. § 982.552(b).

      In his complaint, Shell alleged that Foulkes’s later three-day notice nullified

the earlier sixty-day notice, so Foulkes actually evicted him for non-payment of



                                           4
rent, which was not “good cause” under the lease. Thus, Shell alleged that

Foulkes’s unlawful eviction caused the HHA to terminate his Section 8 benefits.

Shell demanded $1 million in damages.

B.    District Court Proceedings

      On September 29, 2008, the district court granted Shell’s motion to proceed

in forma pauperis. On the same day, the district court also issued an order

directing Shell to show cause why his complaint should not be dismissed for lack

of subject matter jurisdiction, pointing out that it did not appear on the face of the

complaint that Foulkes had “acted under color of state law.” Shell responded that a

private landlord terminating a lease without good cause was state action, and,

alternatively, that he need not allege state action because he had alleged a

constitutional deprivation of a vested property interest.

      On November 25, 2008, landlord Foulkes, also pro se, filed an answer

alleging that, after Shell refused to renew his lease in 2004, his lease expired and

Foulkes issued a sixty-day notice to vacate the unit so Foulkes could do

renovations. Shell did not vacate the unit and was evicted. The HHA gave Shell a

voucher to find a new place to live, but he refused to do so. Subsequently, the

HHA terminated Shell’s Section 8 benefits because he had been evicted after

refusing to vacate the premises. Foulkes also alleged that Shell already had filed



                                            5
two civil actions against Foulkes for wrongful termination of the lease, that these

actions had terminated in his favor, and that Shell was harassing him.

      During the course of the proceedings, the district court permitted Shell to file

an amended complaint and a second amended complaint, the purpose of which was

to add Foulkes’s wife, Monica Foulkes, as a defendant. Later, the district court

dismissed the claim against Monica Foulkes for failure to state a claim and as

barred by the statute of limitations. Shell does not appeal her dismissal.

      On April 9, 2009, Foulkes filed a “Plea for Rule in Favor of Defendant,”

arguing that Shell’s claims were barred by res judicata. The district court

construed Foulkes’s motion as a motion for summary judgment and gave Shell

notice of his obligation to respond. Shell filed a response opposing summary

judgment on res judicata grounds.

      On April 27, 2009, the district court dismissed Shell’s claims against

Foulkes on two grounds. First, the district court concluded that Shell’s § 1983

claims were barred by res judicata because Shell already had sought such relief in

previous state court proceedings. Second, the district court sua sponte dismissed

Shell’s action for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2).

Specifically, the district court found that Shell failed to allege how Foulkes acted

under color of state law, as required for claims arising under § 1983. The district



                                           6
court denied Foulkes’s motion for reconsideration. Foulkes filed this appeal.

                                      II. DISCUSSION

       When a litigant is granted in forma pauperis status, 28 U.S.C. § 1915 serves

an important gate-keeping function by requiring the district court to sua sponte

dismiss an action that fails to state a claim on which relief may be granted. 28

U.S.C. § 1915(e)(2)(B)(ii). However, the district court may not dismiss an in

forma pauperis complaint pursuant to § 1915(e)(2)(B)(ii) without allowing leave to

amend when required by Federal Rule Civil Procedure 15. Brown v. Johnson, 387

F.3d 1344, 1348 (11th Cir. 2004) (reversing district court’s denial of motion to

amend complaint filed before responsive pleading served).1

       Under Rule 15(a), the plaintiff may amend a complaint “once as a matter of

course at any time before a responsive pleading is served.” Fed. R. Civ. P. 15(a)(1)

(2008).2 Once the defendant has served a responsive pleading, amendment may be

made only by leave of the district court or the consent of the defendant. Fed. R.

Civ. P. 15(a)(2) (2008). Leave to amend should be freely given “when justice so

requires.” Id. However, the district court “is not required sua sponte to grant leave



       1
       We review de novo a district court’s sua sponte dismissal for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), taking the allegations in the complaint as true.
Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003).
       2
         The most recent amendments to Rule 15 went into effect on December 1, 2009 and,
thus, do not apply.

                                                7
to amend” when a plaintiff has not moved to amend. Burger King Corp. v.

Weaver, 169 F.3d 1310, 1318 (11th Cir. 1999).

       Shell’s argument that he should have been given an opportunity to amend

his complaint before the district court dismissed it pursuant to § 1915 is without

merit. Because Foulkes had already answered Shell’s complaint, Shell had no right

to amend as a matter of course. See Fed. R. Civ. P. 15(a)(1) & (2). The district

court put Shell on notice of his deficient pleading when it issued the show cause

order directing Shell to address his failure to allege state action. Shell’s response

was: (1) that his allegations were sufficient to show state action; or (2) that he need

not allege state action. Although Shell amended his complaint twice after the show

cause order, he did not seek leave to add allegations of state action.

       Furthermore, the district court did not err by dismissing Shell’s § 1983

action for failure to state a claim. Private conduct is not actionable under § 1983;

rather, to state a claim for relief, the alleged deprivation of a constitutional right

must occur “under color of state law.” See Focus on the Family v. Pinellas

Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003). State action is not

established merely because a private entity receives government funding or is

subject to extensive government regulation. See, e.g., San Francisco Arts &

Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 542-47, 107 S. Ct.



                                            8
2971, 2984-87 (1987); Blum v. Yaretsky, 457 U.S. 991, 1003-11, 102 S. Ct. 2777,

2785-89 (1982). However, state action can be shown where “the state has so far

insinuated itself into a position of interdependence with the private party that it was

a joint participant in the enterprise.” Focus on the Family, 344 F.3d at 1277

(brackets and quotation marks omitted). This “nexus” test is only satisfied “when

it can be said that the State is responsible for the specific conduct of which the

plaintiff complains.” Blum, 457 U.S. at 1004, 102 S. Ct. at 2786.

      Here, Shell’s complaint alleged that Foulkes wrongfully terminated his lease

for failure to pay rent and then evicted him. However, Shell’s complaint did not

allege that the HHA played any role in the termination of Shell’s lease or Shell’s

eviction, much less a pervasive role such that it could be said the State was

responsible for Shell’s eviction. Shell’s complaint did not allege that the HHA

approved the lease termination, issued or approved the notice to vacate, or

authorized or initiated the eviction. Cf. Jeffries v. Georgia Residential Fin. Auth.,

678 F.2d 919, 924-25 (11th Cir. 1982) (involving a different Section 8 program in

which the state housing authority authorized the eviction and issued the notice to

vacate and the landlord could not complete the eviction without the housing

authority’s approval). Notably, the regulations governing the Section 8 rental

assistance certificate program, under which Shell leased Foulkes’s apartment, do



                                           9
not give the local housing authority this kind of responsibility. Rather, the

decisions to terminate the tenancy and evict the tenant are left to the discretion of

the unit owner. See 24 C.F.R. § 982.310(h)(1) (providing that the owner “may

take or not take the action in accordance with the owner’s standards for eviction”).

       Further, according to Shell’s complaint, the HHA merely terminated Shell’s

Section 8 benefits after Foulkes terminated the lease and evicted Shell, and Shell

did not find new Section 8 housing in a timely fashion. Given that Shell’s

complaint alleged only private action by his landlord and not state action, the

district court properly dismissed the complaint for failure to state a § 1983 claim.3

       AFFIRMED.




       3
        Because we affirm the district court’s dismissal for failure to state a claim, we do not
address Shell’s challenge to the district court’s dismissal on res judicata grounds.

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