Uchenna Obianyo v. State of Tennessee , 518 F. App'x 71 ( 2013 )

CLD-197 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1341
___________
UCHENNA N. OBIANYO,
Appellant
v.
STATE OF TENNESSEE;
UNITED STATES DEPARTMENT OF STATE
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:12-cv-5320)
District Judge: Honorable Noel L. Hillman
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 18, 2013
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed May 3, 2013)
_________
OPINION
_________
PER CURIAM
Uchenna Obianyo, proceeding pro se, appeals from the District Court’s dismissal
of his complaint. Because the appeal does not present a substantial question, we will
summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
In his complaint, Obianyo alleges that he is a diplomat who has served as an
attaché to the United States since 1989 and has never been paid his “diplomatic immunity
stipend.” He also claims that all of his belongings, including his personal identification
documents, have been confiscated by the State of Tennessee and the United States
government. Obianyo also asserts that the defendants have violated 18 U.S.C. §§ 1028 &
1343. As relief, Obianyo seeks $10 million in damages. The District Court sua sponte
dismissed Obianyo’s complaint without prejudice.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 1 and exercise plenary review
over the District Court’s dismissal order. See Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000). To survive dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
1
Generally, when a district court has dismissed a complaint without prejudice, the
dismissal is not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the
defect or where the litigant declares an intention to stand on the complaint, whereupon
the district court’s order becomes final. Borelli v. City of Reading, 532 F.2d 950, 951-52
(3d Cir. 1976) (per curiam). We read the statement attached to Obianyo’s notice of
2
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). We may summarily affirm on any basis supported by the record. Murray v.
Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
III.
The District Court properly dismissed Obianyo’s complaint. First, criminal
statutes such as 18 U.S.C. § 1343, which criminalizes wire fraud, and 18 U.S.C. § 1028,
which criminalizes fraud related to identification documents, provide no private right of
action for use by a litigant such as Obianyo. See Gonzaga Univ. v. Doe, 536 U.S. 273,
283-84 (2002). Furthermore, the Eleventh Amendment “enacts a sovereign immunity
from suit,” precluding Obianyo’s federal suit against Tennessee. Idaho v. Coeur d’Alene
Tribe, 521 U.S. 261, 267 (1997). Tennessee has not consented to be sued in federal
court. See Berndt v. Tenn., 796 F.2d 879, 881 (6th Cir. 1986); see also Tenn. Ann. Code
§ 20-13-102(a). Finally, to the extent that Obianyo asserts a breach of contract claim
against the United States government, his claim must be brought in the United States
Court of Federal Claims. See 28 U.S.C. § 1491(a)(1); see also Anselma Crossing, L.P. v.
USPS, 637 F.3d 238, 242 n.6 (3d Cir. 2011).
appeal as his declaration of intent to stand on the allegations contained in his complaint;
accordingly, we may exercise jurisdiction over his appeal.
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IV.
For the foregoing reasons, we will summarily affirm the District Court’s
judgment. 2 See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.\
2
Offering Obianyo leave to amend his complaint was not necessary under the
circumstances presented here. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114
(3d Cir. 2002).
4