PS1-163                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 14-1460
                                     ___________

                                   ERIC J. RHETT,
                                              Appellant

                                           v.

 SUPERVISOR C. EVANS; PUBLIC SERVICE ELECTRIC AND GAS CO; HOME
ENERGY ASSISTANCE PROGRAM; DEPARTMENT OF COMMUNITY AFFAIRS;
                           PROCEED INC.
                ____________________________________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                       (D.C. Civil Action No. 3-11-cv-02099)
                    District Judge: Honorable Peter G. Sheridan
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  August 8, 2014
            Before: FISHER, VANASKIE and ALDISERT, Circuit Judges

                           (Opinion filed: August 12, 2014 )
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Eric J. Rhett appeals pro se from an order granting the defendants’ motions to

dismiss, one of which was converted to a motion for summary judgment, in an action
seeking relief pertaining to his account for utility services in his home. For the following

reasons, we will affirm.

       In April 2011, Rhett filed a complaint alleging that his utility service account fell

into arrears because the New Jersey Department of Community Affairs failed to apply a

credit under the Home Energy Assistance Program. The utility provider, Public Service

Electric and Gas Company (PSE&G), filed a motion to dismiss, arguing, inter alia, that

Rhett’s claims were moot. In particular, PSE&G alleged that Rhett was currently being

provided with utility services, that there were no scheduled interruptions of those

services, that he was receiving a $73.71 monthly credit from the Home Energy

Assistance Program, and that there was no past due balance on his account. Because the

motion relied on a certification from a PSE&G employee, the District Court converted

the motion to dismiss into one for summary judgment, and provided the parties with

additional time to present material pertinent to the motion.1 In response, Rhett submitted

several recent utility service account statements, which included a shut-off notice, listed a

past-due balance, and omitted any indication that he was receiving a credit. By order

entered September 11, 2012, the District Court granted PSE&G’s motion, holding, inter

alia, that Rhett’s claims were moot.

       The Department of Community Affairs also filed a motion to dismiss, asserting

that it was immune from suit under the Eleventh Amendment, that Rhett’s claims were

moot, and that Rhett failed to exhaust his administrative remedies before the New Jersey

1
 Rhett sought review of this order, and we dismissed the appeal for lack of jurisdiction.
See Rhett v. Evans, C.A. No. 12-3496 (order entered Dec. 7, 2012).

                                              2
Board of Public Utilities. The District Court agreed and, by order entered February 7,

2014, granted the motion to dismiss. Rhett appealed.

       We have jurisdiction under 28 U.S.C. § 1291. “We review district court decisions

regarding both summary judgment and dismissal for failure to state a claim under the

same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826

(3d Cir. 2011). “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, 129 S. Ct. 1937, 1949 (2009) (internal quotations omitted). Summary

judgment is proper where, viewing the evidence in the light most favorable to the

nonmoving party and drawing all inferences in favor of that party, there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir.

2006). We may affirm on any basis supported by the record. See Fairview Twp. v. EPA,

773 F.2d 517, 525 n.15 (3d Cir. 1985).

       The District Court erred in concluding that Rhett’s claims against PSE&G are

moot. PSE&G submitted an affidavit from a Customer Operations Supervisor, which

stated that “Rhett currently receives a credit on his utility account . . . [and that] there is

no scheduled interruption of services nor is there any plan to schedule any interruption of

service as there is no past due balance . . . .” But Rhett raised a genuine issue of material

fact about this contention by providing recent statements stating that “[y]our service is

currently in danger of being shut off” and that his account was “past due.” The District

Court acknowledged these statements, but discounted them because “Mr. Rhett receives a

                                                3
computer generated bill on a pre-formatted bill which are sent to all customers. It is

impractical to expect PSE&G to pull out Mr. Rhett’s notice from the mass mailing when

there are so many customers. PSE&G contends that Mr. Rhett should ignore the monthly

statement since his services are partially paid for by the Home Energy Assistance

Program, and PSE&G has no intention to collect or shut off service.” There is no

evidence in the record, however, that it is impractical for PSE&G to provide Rhett with

an accurate account statement or that PSE&G has advised Rhett to ignore those

statements.

       Although Rhett raised a genuine issue of material fact concerning whether his

claims against PSE&G are moot, we conclude that dismissal of his complaint was proper.

Rhett’s complaint refers to the Fourteenth Amendment and states that he is disabled, but,

even read liberally, it fails to allege plausible facts sufficient to support a claim for relief.

See Iqbal, 556 U.S. at 679. To assert a claim under 42 U.S.C. § 1983, a plaintiff “must

establish that she was deprived of a federal constitutional or statutory right by a state

actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Although PSE&G is subject to

state regulations, there is no sufficiently “close nexus” between New Jersey and the

challenged action in this case, namely, the calculation of Rhett’s utility bill. See Jackson

v. Metro. Edison Co., 419 U.S. 345, 357 (1974) (holding that the termination of electrical

services by a privately owned utility was action by a private actor and not the state, even

though the utility company was subject to extensive state regulation). Accordingly,

because PSE&G did not function as a state actor in these circumstances, Rhett cannot

establish a claim under § 1983.

                                                4
       With respect to Rhett’s allegations concerning the Department of Community

Affairs, we agree that his claims are barred by the Eleventh Amendment. The

Department of Community Affairs is a principal department “established in the Executive

Branch of the State Government.” N.J. Stat. Ann. § 52:27D-1. The Eleventh

Amendment protects a state or state agency from a suit brought in federal court regardless

of the relief sought, unless Congress specifically abrogates the state’s immunity or the

state waives its own immunity. MCI Telecomm. Corp. v. Bell Atl., 271 F.3d 491, 503-04

(3d Cir. 2001).2 Section 1983 does not abrogate states’ immunity, Quern v. Jordan, 440

U.S. 332, 340-41 (1979), and neither the State of New Jersey nor its agencies have

consented to suit or waived their Eleventh Amendment immunity. The District Court

thus properly dismissed the claims brought against the Department of Community

Affairs.

       For the foregoing reasons, we will affirm the judgment of the District Court.3


2
  Suits for injunctive relief against state officials brought to end ongoing violations of
federal law are not barred by the Eleventh Amendment. See Ex Parte Young, 209 U.S.
123 (1908); cf. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 146 (1993) (noting inapplicability of Ex Parte Young exception to state agencies).
Here, Rhett named as a defendant Supervisor C. Evans. According to the District Court,
“neither PSE&G nor the Department of Community Affairs can identify her as an
employee. Under any circumstances, Super[visor] Evans has no ability to alter Mr.
Rhett’s utility bill.” Because Rhett has not challenged this determination on appeal, we
will not consider it. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (noting that
issues not raised on appeal are deemed abandoned and waived).
3
  Rhett filed a document on August 4, 2014, asking for en banc rehearing in a separate,
closed appeal, Rhett v. Disman, No. 06-2903, 228 F. App’x 225 (3d Cir. 2007). We note
that the time for seeking such rehearing has long since passed. See Fed. R. App. P. 35(c),
40(a)(1).

                                             5
