CLD-409 NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 07-2560

L O U IS PAUL TOSCANO,

Appellant

v. M A G E L L A N HEALTH SERVICES,

a ls o known as Green Spring of New Jersey,

also known as Merit Behavioral Care

O n Appeal from the United States District Court

F o r the District of New Jersey

(D .C . Civ. No. 05-cv-04832)

D istrict Judge: Honorable Garrett E. Brown, Jr.

S u b m itte d for Possible Dismissal Under 28U.S.C. § 1915(e)(2)(B) or Summary Action

Under Third Circuit LAR 27.4 and IOP 10.6

S e p te m b e r 27, 2007

B e f o re : RENDELL, SMITH and JORDAN, Circuit Judges

(F ile d : October 18, 2007)

O P IN IO N

P E R CURIAM

T h is is an appeal from the district court's dismissal of Louis Paul Toscano's

a m e n d e d complaint filed against Magellan Health Services ("Magellan"). For the

fo llo w ing reasons, we will dismiss this appeal. See 28U.S.C. § 1915(e)(2)(B)(i).

I.

O n October 6, 2005, Toscano initiated this action by filing a complaint against M a g e llan .1 In this complaint he primarily alleged that he had been diverted, against his w ill, into AT&T's permanent disability program which is managed, in part, by Magellan.2 B e c au s e of this designation, Toscano argued, he was unable to obtain the vocational re h a b ilita tio n services he requires in order to re-enter the workforce. Magellan moved for s u m m a ry judgment and the district court, construing the request as one under Federal R u le of Civil Procedure 12(b)(6), dismissed the complaint without prejudice on February 2 6 , 2007, for failing to state a claim upon which relief could be granted. In its order, the d is tric t court granted Toscano leave to file an amended complaint within ten days, which h e did on March 27, 2007. In his amended complaint, Toscano argued that Magellan was in a position to know that his termination from AT&T was improper and that, after his ter m in a tio n from AT&T, Magellan had failed to provide services that would allow him to tra n sitio n back to the workforce. Magellan moved to dismiss Toscano's amended co m p lain t. In an opinion and separate order entered on May 10, 2007, the district court d is m is s e d the amended complaint with prejudice. Toscano filed a timely notice of appeal.

II.

W e have jurisdiction over this appeal under 28U.S.C. § 1291. Because Toscano h a s been granted in forma pauperis status, we review this appeal for possible dismissal u n d e r 28U.S.C. § 1915(e)(2)(B). Section 1915(e)(2)(B) authorizes dismissal of an a p p e al if it has no arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 3 2 5 (1989). This court's review of a district court's dismissal under Rule 12(b)(6) is p l e n a ry. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A motion to dismiss p u rs u a n t to Rule 12(b)(6) "tests the sufficiency of the allegations contained in the c o m p la in t." Id.

I I I.

T h e district court correctly determined that Toscano's amended complaint, in v o k in g the Americans with Disabilities Act and the Vocational Rehabilitation of 1973, f a ile d to state a claim against Magellan that could entitle him to any relief. Magellan, a h e a lth care management organization, is authorized to administer AT&T's mental health a n d substance abuse benefits under AT&T's group insurance program for its employees.

As a benefits program administrator for AT&T, Magellan was simply not in a position to ac t in any way related to Toscano's termination from AT&T nor to modify Toscano's d isa b ility status.3 Further, as the district court noted, these decisions rested with his f o rm e r employer, AT&T. Additionally, Toscano alleged no monetary harm as a result of M a g e l la n ' s actions or inactions concerning his status.

In sum, because Toscano's appeal lacks arguable legal merit, we will dismiss it p u rsu a n t to 28U.S.C. § 1915(e)(2)(B)(i). Toscano's motions for emergent relief and to c o m p e l records are denied.

1 On this same date, Toscano also filed separate complaints against AT&T and C o n n e c tic u t General Life Insurance Company ("CGLIC") in the District of New Jersey. See D.C. Nos. 05-cv-03539, 05-cv-04833. Both of these actions and the action u n d e rlyin g this appeal were consolidated for the purposes of discovery only. Appeals by T o s c a n o in his actions against CGLIC and AT&T are currently pending before this court. See C.A. Nos. 07-1629, 07-2438.

2 Toscano also made numerous claims concerning the circumstances of his te r m in a t io n from AT & T. As we further explain, it is unclear how Magellan, as a p ro v id e r of health services, was a party to any of these transactions.

3 Toscano, in fact, conceded in his amended complaint that he "realiz[ed] that s o m e aspects of this case were not within the control of [Magellan]."