La’keya Keo v. FEDERAL BUREAU OF INVESTIGATION On Appeal from the United States District Court for…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 26-1258
__________
LA’KEYA KEO,
Appellant
v.
FEDERAL BUREAU OF INVESTIGATION
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civil Action No. 1:25-cv-00126)
District Judge: Honorable Jennifer P. Wilson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 5, 2026
Before: MATEY, MONTGOMERY-REEVES, and NYGAARD, Circuit Judges
(Opinion filed: August 10, 2026)
___________
OPINION*
___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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2
Pro se appellant La’Keya Keo appeals from the District Court’s sua sponte
dismissal of her amended complaint without prejudice. For the reasons that follow, we
will affirm the District Court’s judgment, with one modification.
Keo initiated this federal action for damages against the Federal Bureau of
Investigation (“FBI”). The District Court dismissed Keo’s complaint on sovereign
immunity grounds but gave her an opportunity to amend her complaint. Keo amended her
complaint, alleging “police brutality, misconduct, police negligence, discrimination,
harassment, Racial, Retaliation, Gender, Age, Religion, medical negligence, medical
malpractice and[] discrimination against a patient based on protected characteristics (like
race, ethnicity, disability, etc.) pursuant to Title VII.” The factual allegations in Keo’s
amended complaint are essentially that she was a victim of cybercrimes and
cyberbullying, and that the FBI failed to investigate or take other action on her crime
reports.
The District Court, adopting the Magistrate Judge’s Report and Recommendation,
dismissed Keo’s amended complaint without prejudice for lack of subject-matter
jurisdiction and without further leave to amend. Keo timely appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de
novo the District Court’s dismissal of Keo’s complaint for lack of subject-matter
jurisdiction. See In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625,
632 (3d Cir. 2017). We may affirm a district court’s decision on any basis supported by
the record. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

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3
Keo’s arguments on appeal mostly reiterate her complaint’s allegations, and she
does not appear to challenge meaningfully the District Court’s determination that it
lacked subject-matter jurisdiction. Instead, she seemingly challenges the District Court’s
decision to deny her leave to amend her complaint further. Nevertheless, the District
Court properly dismissed Keo’s amended complaint. Sovereign immunity shielded the
FBI from Keo’s constitutional claims. See FDIC v. Meyer, 510 U.S. 471, 475 (1994)
(“Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.”). Even if Keo purported to bring claims under the Federal Tort Claims Act
(“FTCA”) against the United States, the FTCA’s discretionary function exception would
preclude the District Court’s jurisdiction over those claims. See Xi v. Haugen, 68 F.4th
824, 837–38 (3d Cir. 2023); cf. Kelly v. United States, 924 F.2d 355, 362 (1st Cir. 1991)
(“Since decisions to investigate, or not, are at the core of law enforcement activity, the
bureau chiefs’ challenged conduct involved precisely the kind of policy-rooted
decisionmaking that [the discretionary function exception] was designed to safeguard.”).
To the extent that Keo brought any claims under Title VII of the Civil Rights Act
of 1964, Keo did not state a claim for relief because she failed to allege that she was an
employee or an applicant for employment with the FBI. See Covington v. Int’l Ass’n of
Approved Basketball Offs., 710 F.3d 114, 119 (3d Cir. 2013) (holding that a Title VII
plaintiff “must allege an employment relationship with the defendant[ ]”).
Finally, we agree with the Distrct Court’s determination that, under the
circumstances of this case, granting Keo further leave to amend her complaint would
have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002).

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4
Therefore, we will affirm the District Court’s judgment, but we will modify the District
Court’s dismissal order so that Keo’s Title VII claims are dismissed with prejudice.1 To
the extent that Keo seeks other relief on appeal, it is denied.
1 As mentioned earlier, the District Court dismissed Keo’s claims without prejudice for
lack of subject-matter jurisdiction. But because we are upholding the dismissal of Keo’s
Title VII claims based on our conclusion that Keo failed to state a viable claim for relief
under Title VII and that amendment would have been futile, the dismissal of those claims
should be with prejudice. See, e.g., Fallon v. Mercy Cath. Med. Ctr. of Se. Pa., 877 F.3d
487, 489 (3d Cir. 2017) (“Because the District Court concluded that amendment would
be futile, the dismissal was with prejudice.”).

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