Rhett v. C. Evans, 081214 FED3, 14-1460

• Docket Nº: 14-1460
• Opinion Judge: PER CURIAM
• Party Name: ERIC J. RHETT, Appellant v. SUPERVISOR C. EVANS; PUBLIC SERVICE ELECTRIC AND GAS CO; HOME ENERGY ASSISTANCE PROGRAM; DEPARTMENT OF COMMUNITY AFFAIRS; PROCEED INC.
• Judge Panel: Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
• Case Date: August 12, 2014
• Court: United States Courts of Appeals, Court of Appeals for the Third Circuit

ERIC J. RHETT, Appellant

v.

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

No. 14-1460

United States Court of Appeals, Third Circuit

August 12, 2014

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) August 8, 2014

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

Before: FISHER, VANASKIE and ALDISERT, Circuit Judges

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 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...