Bills v. Blytheville Water Work

Filing 14

ORDER finding that Mr. Bills does not state a claim upon which relief may be granted. Thus, the Court dismisses without prejudice the 1 Complaint. The Court determines that dismissal of this action constitutes a "strike". The Court certifies that an in forma pauperis appeal from this Order or the accompanying Judgment would not be taken in good faith. The Court denies as moot Mr. Bills's 12 Motion to appoint counsel. Signed by Judge Kristine G. Baker on 6/27/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
CLESTER BILLS

V.

PLAINTIFF

Case No. 3:16-cv-48 KGB

BLYTHEVILLE WATER WORK

DEFENDANT

ORDER
Plaintiff Clester Bills, who is an inmate at the Mississippi County Detention Facility, filed
a pro se complaint pursuant to 42 U.S.C. § 1983 on February 8, 2016 (Dkt. No. 1). This Court
subsequently granted Mr. Bills’s motion for leave to proceed in forma pauperis (Dkt. No. 13).
Federal law requires that this Court screen prisoner complaints prior to effecting service upon a
defendant. 28 U.S.C. § 1915A. Claims that are legally frivolous or malicious; that fail to state a
claim for relief; or that seek money from a defendant immune from paying damages should be
dismissed before the defendants are served. Id. For the reasons stated below, the Court finds that
Mr. Bills’s complaint should be dismissed.
An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a pro se complaint under
28 U.S.C. § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Court also must weigh all factual allegations in
favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S.
25, 32-33 (1992) (explaining that clearly baseless facts include those that are fanciful, fantastic,

and delusional). But regardless whether a plaintiff is represented or appearing pro se, the
complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985).
On behalf of himself and other citizens of Blytheville, Mr. Bills sues Blytheville Water
Work for $5 billion because he has been charged $3 per month for mosquito spraying which he
believes causes the mosquitos to become more aggressive (Dkt. No. 1). Mr. Bills also alleges that
the spray may cause other problems such as breathing difficulties (Id.).
To state a cognizable claim for money damages under § 1983, a plaintiff must allege that
the conduct of a defendant acting “under color of state law” deprived him of a right, privilege, or
immunity secured by the federal Constitution or laws of the United States. 42 U.S.C. § 1983;
Hamilton v. Schriro, 74 F.3d 1545, 1549 (8th Cir. 1996). Whether a utility company is a State
actor for purposes of § 1983 depends on “whether there is a sufficiently close nexus between the
State and the challenged action of the regulated entity so that the action of the latter may be fairly
treated as that of the State itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974) (internal
citations omitted). Mr. Bills alleges no facts to show that Blytheville Water Work is a state actor.
Furthermore, even if Mr. Bills could establish that the defendant is a state actor, his
complaint fails to state a constitutional claim because he alleges no injury. A § 1983 action is a
species of tort, and general principles of tort law require that a plaintiff suffer some actual injury
before he can receive compensation. See Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008)
(citing Carey v. Piphus, 435 U.S. 247, 253-55 (1978)). Mr. Bills has not alleged a constitutional
right or federal law that he believes is being violated by the conduct he alleges. Further, Mr. Bills
alleges only that he believes the mosquito spray is harmful; that the spraying makes the mosquitos
more aggressive; and that the spray itself may cause breathing problems. Mr. Bills’s mere
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speculation that the mosquito spray is harmful is insufficient to state a claim for relief under §
1983. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be
enough to raise a right to relief above the speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact) . . . ”) (internal citations omitted).
For these reasons, the Court finds that Mr. Bills does not state a claim upon which relief
may be granted. Thus, the Court dismisses without prejudice his complaint (Dkt. No. 1). The
Court determines that dismissal of this action counts as a “strike” within the meaning of 28 U.S.C.
§ 1915(g). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal from this Order or the accompanying Judgment would not be taken in good faith. Finally,
having dismissed without prejudice his complaint, the Court denies as moot Mr. Bills’s motion to
appoint counsel (Dkt. No. 12).
It is so ordered this the 27th day of June, 2017.

___________________________
Kristine G. Baker
United States District Judge

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