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United States Court of Appeals, Third Circuit.

Regina Mercedes GUYTON, Appellant v. PECO INC; Lynn R. Zack

No. 18-2996

Decided: May 03, 2019

Before: KRAUSE, SCIRICA, and NYGAARD, Circuit Judges Regina Mercedes Guyton, Pro Se


Regina Mercedes Guyton appeals the District Court's dismissal of her complaint for failure to state a claim. Also pending before us is a motion for injunctive relief. For the following reasons, we will affirm the District Court's dismissal and deny the motion.

Guyton filed this action against PECO Inc. and Lynn R. Zack (collectively, Defendants), alleging they disconnected her utility services at her house for over an hour on May 10, 2018, even though she had been paying for services. She also alleged that PECO and Zack issued threats against her. After Guyton filed an amended complaint and application to proceed in forma pauperis (IFP), the District Court granted Guyton leave to proceed IFP, but dismissed her complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Guyton then filed a second amended complaint. The District Court construed the second amended complaint liberally to allege a due process claim, see 42 U.S.C. § 1983, against PECO, a Fair Debt Collection Practices Act (FDCPA) claim against Defendants,1 and a breach-of-contract claim against Defendants.

The District Court determined that PECO is not a state actor, and thus cannot be sued under § 1983. See Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (noting there is no liability under § 1983 for those not acting under color of state law). As to the FDCPA claim, the District Court held that, while Guyton is a consumer and her utility bills are a “debt” under the FDCPA, Defendants were not “debt collectors” as that term is defined; rather, Defendants were attempting to collect a debt in their own name.2 See 15 U.S.C. § 1692a(6) (A “debt collector” includes “any person ․ who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” (emphasis added)); see also Barbato v. Greystone All., LLC, 916 F.3d 260, 265 (3d Cir. 2019) (explaining the elements of an FDCPA claim). Finally, as to the state-law breach-of-contract claim, the District Court found that Guyton and Defendants were all Pennsylvania residents, and thus no diversity of citizenship existed.3 See 28 U.S.C. § 1332.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court's sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) is de novo. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). When considering whether to dismiss a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii), the District Court uses the same standard it employs under Fed. R. Civ. P. 12(b)(6). See id. “[A] complaint must contain sufficient factual allegations, taken as true, to ‘state a claim to relief that is plausible on its face.’ ” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We accept all factual allegations in the complaint as true and construe those facts in the light most favorable to the plaintiff. Id.

On appeal, Guyton argues that PECO has received payments from her for over a year, but that her service was shut off and Zack sent a letter “of non-recognition” to her, notifying her that the form of payment she tendered was not recognized.4 She also alleges, for the first time and without support, that she is being racially and religiously discriminated against.5 Appellant's Br. 1. However, Guyton does little to contest the District Court's determinations. The only argument Guyton advances to contest the District Court's order is a single sentence asserting that “all [of] the cases” the District Court chose “did not apply” but there are “many [other] cases of successful application.” Appellant's Br. 2. Guyton does not cite any of these other cases. More importantly, she does not present any argument as to the viability of her § 1983 due process claim against PECO, or her FDCPA and breach-of-contract claims against Defendants.

Consequently, we are inclined to view Guyton's two page brief—which sets forth none of the issues addressed by the District Court and contains no citation to authority 6 or the record—as effectively waiving any challenge to the District Court's rulings on these matters.7 See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (noting that if an appellant fails “to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief” those issues are normally deemed “abandoned and waived ․ on appeal and [they] need not be addressed by the court of appeals”); see also Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 821 n.10 (3d Cir. 2006) (noting that “passing and conclusory statements do not preserve an issue for appeal”).

Even if we declined to enforce this waiver, we would—for the reasons mentioned above and thoroughly discussed in the District Court's order—find no error in the District Court's dismissal pursuant to § 1915(e)(2)(B)(ii). The District Court generously construed Guyton's pleadings and made every reasonable inference it could, despite the lack of detail and facts presented. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (noting that, while the pleading standard of Rule 8 does not require “ ‘detailed factual allegations,’ ” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and that a complaint is insufficient “if it tenders ‘naked assertions’ devoid of ‘further factual enhancement’ ” (alteration omitted) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955)). Furthermore, given the circumstances of this case, including the fact that Guyton was allowed to amend her complaint twice, the District Court did not err in declining to invite additional amendment of her complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002).

For the foregoing reasons, we will affirm the District Court's judgment. We deny Guyton's motion for injunctive relief for the reasons explained in the margin.8


1.   The District Court reasoned that Guyton was alleging a FDCPA claim because Defendants allegedly sent letters threatening Guyton and demanding payment of her utility bills.

2.   As to Zack, the only reasonable inference the District Court could draw from the pleadings was that Zack was an employee of PECO, and thus could not be considered a “debt collector” either. See 15 U.S.C. § 1692a(6)(A) (an employee of a creditor collecting debts in the name of the creditor is not a “debt collector”).

3.   We view the District Court's disposition of this claim to amount to a refusal to exercise supplemental jurisdiction over any state-law claim. See 28 U.S.C. § 1367.

4.   Throughout the pleadings and on appeal, Guyton continuously refers to something called “Treasury Off set” as a means of her payment. She does not thoroughly explain what this is, and, indeed, states “it[’]s not [o]ne[’]s responsibility to explain [it].” Appellant's Br. 1.

5.   We need not address this conclusory, undeveloped accusation. See Ross v. Hotel Employees & Rest. Employees Int'l Union, 266 F.3d 236, 242 (3d Cir. 2001) (“Generally, absent compelling circumstances an appellate court will not consider issues that are raised for the first time on appeal.” (emphasis added) (internal quotations omitted)).

6.   Guyton does cite to “HJR 192,” which is apparently cited as a baseless means of avoiding debt. See, e.g., United States v. Salman, 531 F.3d 1007, 1009 (9th Cir. 2008) (affirming conviction under 18 U.S.C. § 514(a)(2) of defendant who presented fictitious financial instruments, marked with “HJR 192,” to the Internal Revenue Service).

7.   While we are mindful of the Guyton's pro se status, and although we construe pro se filings liberally, this policy has not prevented us from applying the waiver doctrine to pro se appeals. See, e.g., Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002) (per curiam); Gambino v. Morris, 134 F.3d 156, 161 n.10 (3d Cir. 1998).

8.   As the appeal is now at an end, Guyton's “Request for Injunction,” which appears to seek preliminary injunctive relief pending the disposition of this appeal, is now moot. See Constand v. Cosby, 833 F.3d 405, 409 (3d Cir. 2016). And even if it were not, the motion rested on undeveloped allegations and failed to identify the precise injunctive relief she sought. See Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (setting forth requirements for establishing that preliminary injunctive relief is warranted).


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