                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3441
                                       ___________

                               MONSERRATE ZAPATA,
                                           Appellant

                                             v.

                   PECO; PHILADELPHIA ELECTRIC COMPANY
                     ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Civil Action No. 17-cv-03699)
                     District Judge: Honorable Joseph F. Leeson, Jr.
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 20, 2018
              Before: SHWARTZ, KRAUSE and FISHER, Circuit Judges

                            (Opinion filed February 21, 2018)
                                      ___________

                                        OPINION*
                                       ___________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Pro se appellant Monserrate M. Zapata appeals the District Court’s orders

dismissing his complaint and denying his motion for reconsideration. We will affirm the

District Court’s judgment.

       In September 2017, Zapata filed a pro se civil rights complaint pursuant to 42

U.S.C. § 1983 in the United States District Court for the Eastern District of Pennsylvania

against the Philadelphia Electric Company (“PECO”). Zapata alleges that PECO violated

his Fourteenth Amendment due process and equal protection rights when it issued two

“shut off notices” on October 4, 2016, and July 11, 2017, because Zapata failed to give

PECO access to inspect its meter. He claims that he never denied PECO access to the

meter and, in fact, replied to PECO that “upon advance notice that [he] would be at his

home, or will have someone at home to open the doors so that PECO could inspect [their]

electric meter.” Zapata also contends that the meter is functional, that he is billed

excessively, and that his monthly bills, including additional charges incurred in

connection with a “shut off,” could result in his losing his home.

       The District Court dismissed Zapata’s complaint pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii), concluding that PECO is not a state actor for purposes of § 1983, and

that Zapata had failed to state a constitutional violation. In October 2017, Zapata filed a

“Petition for Review of the Memorandum and Order of the U.S. District Court 9/14/17,”




                                              2
which the District Court construed as a motion for reconsideration and subsequently

denied. Zapata appeals.

         We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the

District Court’s sua sponte dismissal under 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state

a claim. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e accept all

factual allegations as true [and] construe the complaint in the light most favorable to the

plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting

Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). We review the

District Court’s denial of the motion for reconsideration for an abuse of discretion. See

Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir.

1999).

         We agree with the District Court’s disposition of this case. To assert a claim

under § 1983, a plaintiff “must establish that [he] was deprived of a federal constitutional

or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). As

Zapata acknowledged in his complaint, PECO is a “corporate structure.” SEC filings1

reveal that Exelon Corporation is a registered public utility holding company and that

PECO is an operating company wholly owned by Exelon. In virtually identical

circumstances, the Supreme Court held that a privately owned and operated Pennsylvania


1
 We may take judicial notice of these filings. See Schmidt v. Skolas, 770 F.3d 241, 249
(3d Cir. 2014).

                                               3
utility corporation was not a state actor in connection with its decision to shut off an

individual’s electricity. Jackson v. Metro. Edison Co., 419 U.S. 345, 358 (1974). Zapata

did not plead anything in his complaint to differentiate his case from Jackson.

       In his appellate brief, Zapata argues that PECO was acting in accordance with

“State law 129.”2 However, “[t]he mere fact that a business is subject to state regulation

does not by itself convert its action into that of the State.” Id. at 350; see also Rendell-

Baker v. Kohn, 457 U.S. 830, 842 (1982) (“That a private entity performs a function

which serves the public does not make its acts state action.”); Crissman v. Dover Downs

Entm’t Inc., 289 F.3d 231, 243 (3d Cir. 2002) (“regulation – even detailed regulation, as

we have here – does not equate to state action,” nor does “the flow of funds . . . implicate

the state in private activity”). Accordingly, Zapata cannot establish a claim under § 1983.

       Finally, the District Court did not abuse its discretion in denying Zapata’s motion

for reconsideration because he did not establish any bases for reconsideration. See Max’s

Seafood Café, 176 F.3d at 677.

       For the foregoing reasons, we will affirm the District Court’s judgment.



2
  Act 129 of 2008 amended Pennsylvania’s Public Utility Code for the purpose of
reducing energy consumption and demand by setting in motion a multi-phase
implementation process that addressed electric distribution companies and default service
provider responsibilities, conservation service providers, smart meter technology, time-
of-use rates, real-time pricing plans, default service procurement, market misconduct,
alternative energy sources, and cost recovery. See Romeo v. Pa. Pub. Util. Comm’n, 154
A.3d 422, 424 (Pa. Commw. Ct. 2017) (discussing Act of October 15, 2008, P.L. 1592,
No. 2008–129).
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