Bowhall v. NBC Inc. et al

Filing 12

ORDER overruling the 9 10 11 Objections; denying the 11 Motion for Extension of Time; adopting the 8 Recommendation; granting the 2 Motion for Leave to Proceed in forma pauperis; dismissing the federal claims against Defendants without pr ejudice prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); declining to exercise supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367(c)(3); dismissing the state law claims without prejudice. Signed by Honorable William Keith Watkins on 11/18/2010. (br, )

Bowhall v. NBC Inc. et al(MAG+)

Doc. 12

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION W IL L IA M E. BOWHALL, P la in tif f , v. N B C , INC., et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

CASE NO. 2:10-CV-608-WKW [WO]

O R D E R ADOPTING RECOMMENDATION O n September 22, 2010, the Magistrate Judge filed a Report and Recommendation in th is case. (Doc. # 8.) On October 6, 2010, Plaintiff William E. Bowhall1 filed a Motion to P ro c e e d - In Pro-Se (Doc. # 9), and subsequently a Motion of Continuation (presumably of M r. Bowhall's thoughts) (Doc. # 10), which after review, the court construes as objections. On November 15, 2010, Mr. Bowhall field a Motion for Extension of Time ­ And ­ (Motion to Continue) ­ Supplementals (Added) (Doc. # 11), which the court also construes in part as a n objection. The court has conducted a de novo review of those portions of the Report and R e c o m m e n d a tio n to which objection is made. See 28 U.S.C. § 636(b)(1). T h e Magistrate Judge liberally construed Mr. Bowhall's complaint as seeking relief

Mr. Bowhall has filed eight other civil actions in this court. See Bowhall v. Johnson & Johnson, No. 2:10cv601-WKW (July 14, 2010); Bowhall v. Capitol-EMI Records, Inc., No. 2:10cv603WKW (July 14, 2010); Bowhall v. Office of James M. Deiman, et al., No. 2:10cv604-WKW (July 14, 2010); Bowhall v. Howell High Sch. Bd. of Educ., No. 2:10cv605-WKW (July 14, 2010); Bowhall v. Viacom, Inc., et al., No. 2:10cv606-WKW (July 14, 2010); Bowhall v. Dep't of Defense, et al., No. 2:10cv607-WKW (July 14, 2010); Bowhall v. Obama, No. 2:10cv609-WKW (July 14, 2010); Bowhall v. NAACP Beverly Hills, No. 2:10cv679-WKW (Aug. 10, 2010).

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under both 42 U.S.C. § 1983 and Bivens v. Six Unkown Named Agents, 403 U.S. 388 (1971). (Doc. # 8, at 5.) To obtain relief under § 1983 or Bivens, Mr. Bowhall must show that he was d e p riv e d of a federal right by a person acting under color of state (for § 1983 claims) or f e d e ra l (for Bivens claims) law. See Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315 (1 1 th Cir. 2000) (§ 1983 claims); O'Brien v. United States, 137 Fed. Appx. 295, 299 (11th C ir. 2005) (Bivens claims). The Magistrate Judge concluded that Mr. Bowhall's claims did n o t allege that the Defendants were acting under color of state or federal law. Mr. Bowhall o b je c ts to this conclusion, and seems to posit that everyone is a state actor. "That by a rg u m e n t, private parties . . . lawyers, prominent members of society, preachers, etc., are g iv e n `state actor' status . . . ." (Doc. # 9, at 6.) The court is aware of no authority s u p p o rtin g Mr. Bowhall's interpretation of state action. F u rth e rm o re , because all of Mr. Bowhall's federal claims are due to be dismissed, the c o u rt declines to exercise supplemental jurisdiction over Mr. Bowhall's state claims. See 28 U .S .C . § 1367(c)(3). Accordingly, it is ORDERED as follows: 1. 2. 3. P la in tif f 's Objections (Docs. # 9, 10, 11) are OVERRULED; P la in tif f 's Motion for Extension of Time (Doc. # 11) is DENIED; T h e Magistrate Judge's Report and Recommendation (Doc. # 8) is A DO PTED ; 4. P la in tif f 's Motion to Proceed in forma pauperis (Doc. # 2) is GRANTED;

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5.

P la in tif f 's federal claims against Defendants are DISMISSED without p re ju d ic e prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)(ii); and

6.

S u p p le m e n ta l jurisdiction over the state claims is declined pursuant to 28 U .S .C . § 1367(c)(3), and the state law claims are dismissed without prejudice.

A n appropriate judgment will be entered. DONE this 18th day of November, 2010. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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