Parks v. Wal-Mart et al

Filing 8

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Anthony Ray Parks. Objections to R&R due by 12/7/2009. Signed by Honorable James R. Marschewski on November 17, 2009. (dmc)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS H O T SPRINGS DIVISION

A N T H O N Y RAY PARKS v. C iv il No. 6:09-cv-06100

PLAINTIFF

WAL-MART; ADAM CASTILE, M a n a ge r, Wal-Mart; MICHAEL B U F F IN G T O N , Employee, WalM a rt; and DETECTIVE BILL HOUSE

DEFENDANTS

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE P lain tiff, Anthony Ray Parks, filed this action pursuant to the provisions of 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. The case is before the undersigned for preservice s c re e n in g under the provisions of the in forma paupers statute.1 On review, the court is to dismiss th e complaint, or any portion of the complaint, that is frivolous, malicious, or fails to state a claim u p o n which relief may be granted, or seeks monetary relief from a defendant who is immune from s u c h relief. 28 U.S.C. § 1915(e)(2)(B). B ackground A c c o rd in g to the allegations of the complaint, on April 2, 2009, Adam Castile, the manager o f the Wal-Mart Store located at 3604 Hwy. 7 in Hot Springs, Arkansas, reported an aggravated ro b b e ry. Castile reported four black males entered the store loaded buggies with computers, te le v is io n s , stereos, phones, and other items. Michael Buffington, a store employee, is alleged to h a v e picked Anthony Parks (hereinafter Parks), the plaintiff, out of a photo line-up. O n June 29, 2009, Parks alleges he arrested due to an aggravated robbery charge filed by
1

Plaintiff is no longer incarcerated. See Doc. 6.

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Detective Bill House (hereinafter House).

Parks alleges he was not given an interview or

in te rro ga te d concerning the April 2nd crime. Parks was taken to the Garland County Jail and d e ta in e d . O n July 1, 2009, Parks appeared in the District Court of Garland County. As of the date he file d the complaint, October 6, 2009, he remained detained. On October 24, 2009, Parks notified the c o u rt that he had a new address which he indicated was an apartment in Pine Bluff. As relief, Parks seeks damages for pain, suffering, and emotional stress he has suffered as a re s u lt of his arrest and detention. He also seeks an award of punitive damages. P a rk s filed the complaint in the Eastern District of Arkansas. The case was then transferred to this district. D is c u s s io n

This case is subject to dismissal. First, Wal-Mart, Adam Castile, and Michael Buffington are private persons not subject to suit under § 1983. A § 1983 complaint must allege that each defendant, acting under color of state law, deprived plaintiff of "rights, privileges or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. A private entity or individual who complains of criminal conduct and is a witness for the prosecution does not act under color of law. See e.g., Grow v. Fisher, 523 F.2d 875, 879 (7th Cir. 1975)("The mere fact that the individual defendants were complainants and witnesses in an action which itself was prosecuted under color of law does not make their complaining or testifying other that what it was, i.e., the action of private persons not acting under color of law."); Rodgers v. Lincoln Towing Service, Inc., 596 F. Supp. 13, 21 (N.D. Ill. 1984), aff'd, 771 F.2d 194 (7th Cir. 1985)(A private citizen does not act under color of law when reporting a crime). Wal-Mart, Adam Castile, and Michael Buffington

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cannot be sued under § 1983 because they are private citizens, not acting under color of state law. Moreover, these defendants are absolutely immune as witnesses in a criminal proceeding. Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983)(A witness at trial has absolute immunity from suit under § 1983 for giving false testimony damaging to a subject of that testimony).
Second, no claim against House is stated. Parks alleges the following: a crime was reported t o the police; he was identified as one of the four individuals committing the crime by a store e m p lo ye e ; a criminal case was filed against him; he was arrested on June 29th; and he was taken b e fo re a Judge on July 1st. While Parks objects to the fact that he was not interviewed or in te rro ga te d about the alleged crime when arrested, he does not argue any improper or u n c o n s titu tio n a l actions were taken during the course of the arrest or detention. See e.g., Brooks v. C ity of Winston-Salem, 85 F.3d 178 (4th Cir. 1996)(a public official cannot be charged with false a rre s t when he makes the arrest pursuant to a facially valid warrant); Conclusion F o r the reasons stated, I recommend that this case be dismissed for failure to state a claim u p o n which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). Parks has ten days from receipt of the report and recommendation in which to file w r itte n objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may r e s u lt in waiver of the right to appeal questions of fact. Parks is reminded that objections must b e both timely and specific to trigger de novo review by the district court. D A T E D this 17th day of November 2009. /s /

J. Marschewski

HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE -3-