Kennon v. McDonald's Inc et al
ORDER DISMISSING CASE without prejudice; counting this dismissal as a "strike"; and certifying that an ifp appeal would not be taken in good faith. Signed by Judge D. P. Marshall Jr. on 7/8/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MCDONALD'S INC., DIANE
CASTORENA, and NIGEL L. HASKETT
This is the second time that Perry Kennon, a pro se state inmate, has
brought § 1983 claims against these Defendants.
Before docketing . the
complaint, or as soon as practicable thereafter, the Court must screen it. The
Court must identify cognizable claims or dismiss if the complaint is frivolous
or malicious, fails to state a claim, or seeks monetary relief against an immune
defendant. 28 U.S.C. § 1915A(b).
This is Kennon's second attempt to sue these Defendants based on the
same set of facts. Kennon v. McDonald's Inc., et al., 4:11-cv-1-DPM. He alleges
that, in August 2008, while he and his fiancee were having a disagreement in
a McDonald's restaurant, he was attacked and beaten by Nigel L. Haskett, a
Kennon also named restaurant manager Diane
Castorena and McDonald's, Inc., as Defendants. In Kennon's previous case,
this Court ruled:
A Section 1983 violation occurs when a person acting under color
of law deprives another person of "rights, privileges, or
immunities secured by the Constitution and laws" of the United
States. 42 U.S.C.A. § 1983 (West 2003). But there are no state actors
in the case. Haskett and Castorena are private citizens; and
McDonald's is a private corporation. None of the facts in
Kennon's complaint even suggest that the Defendants were acting
under color of state law. Hamilton v. Schriro, 74 F.3d 1545, 1549
(8th Cir. 1996). Kennon's claims against all the Defendants must
therefore be dismissed.
Kennon v. McDonald's Inc., et al., 4:11-cv-1-DPM, Document No.3, at 3-4.
For the same reason, Kennon's claims against all Defendants in this case
are dismissed without prejudice. This dismissal counts as a "strike" for
purposes of 28 U.S.C. § 1915(g). The Court certifies that an in forma pauperis
appeal taken from the order and judgment dismissing this action would be
frivolous and not in good faith.
D.P. Marshall Jr.
United States District Judge
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