NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2134 ___________

KEYRON LAMONTE BINNS; SHARIF ALI GENTRY

v.

JOE TORSELLA, State Treasurer of Unclaimed Property; BRIAN MUNLEY, CPA Director, Unclaimed Property; JOHN DOE, Unclaimed Property Employee; JANE DOE, Unclaimed Property Employee

KEYRON LAMONTE BINNS, Appellant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:20-cv-00925) District Judge: Honorable Yvette Kane ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 on August 24, 2023

Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges

(Opinion filed: October 2, 2023) ____________________________________ ___________

OPINION * ___________

PER CURIAM

Pro se Appellants Keyron Lamonte Binns and Sharif Ali Gentry, Sr., filed a com-

plaint under

, subsequently amended, alleging that property that they

should have inherited was withheld by the Appellees in violation of the Appellants’ con-

stitutional rights. The Appellees filed a motion to dismiss on three grounds: failure to

state a claim upon which relief can be granted, lack of subject matter jurisdiction, and

preclusion by sovereign immunity. A Magistrate Judge issued a report recommending

that the motion be granted. The Appellants objected to the report. The District Court

overruled those objections, adopted the Magistrate Judge’s report and recommendation,

and dismissed the complaint. This appeal followed.

We have jurisdiction pursuant to

. We exercise plenary review

over a district court’s dismissal under Fed R. Civ. P. 12(b). See Allah v. Seiverling,

(3d Cir. 2000). Since the Appellants are proceeding in forma pauperis, we

must dismiss the appeal if it is legally frivolous. See

(e)(2)(B). We

may take summary action when no substantial issue is presented on appeal. See 3d Cir.

L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 The Appellees in this case are employees of the Pennsylvania Department of

Treasury and its Bureau of Unclaimed Property. To the extent that the Appellants sued

the Appellees in their official capacities as state officials, we agree with the District Court

that they are immune under the Eleventh Amendment. See Melo v. Hafer,

(3d Cir. 1990). Although there are exceptions to Eleventh Amendment immunity,

see MCI Telecomm. Corp. v. Bell Atlantic Pa.,

(3d Cir. 2001), none of

them are applicable here. There has been neither congressional abrogation nor state

waiver, and the Ex Parte Young exception does not apply in cases, as here, where “alt-

hough the action is nominally against individual officers, the state is the real, substantial

party in interest and the suit in fact is against the state.”

.

To the extent that the Appellees are not immune, the Appellants also failed to state

a claim upon which relief could be granted. Construing their complaint as a claim for

deprivation of property without due process, we agree with the District Court that the Ap-

pellants failed to allege that the Appellees participated in the alleged constitutional viola-

tions, directed others to do so, or had knowledge of the violations and acquiesced to

them. See Baker v. Monroe Twp.,

, 1190–91 (3d Cir. 1995). We also con-

cur with the District Court’s reasoning as to the denial of further leave to amend as futile.

3 For these reasons, 1 we find that no substantial question has been presented on appeal,

and will affirm the District Court’s dismissal of the Appellants’ complaint. We also deny

Binns’s motion for appointment of counsel.

1 In light of the foregoing, we need not reach the District Court’s alternative conclusion that the complaint is barred because the Appellants did not exhaust the administrative remedies available to them. 4