Howard v. Cumberland Farms
Filing
6
ORDER DISMISSING CASE. Closing Case. Motions terminated: 3 MOTION for Leave to Proceed in forma pauperis filed by Rodney Howard. Signed by Judge Darrin P. Gayles on 11/16/2016. (zvr) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-62615-GAYLES
RODNEY HOWARD,
Plaintiff,
v.
CUMBERLAND FARMS,
Defendant.
/
ORDER DISMISSING CASE
THIS CAUSE comes before the Court on a sua sponte review of the record. Plaintiff
Rodney Howard, appearing pro se, filed a Complaint in this action on November 4, 2016 [ECF
No. 1]. Because the Plaintiff has moved for leave to proceed in forma pauperis [ECF No. 3], the
screening provisions of 28 U.S.C. § 1915(e) are applicable. Pursuant to that statute, courts are
permitted to dismiss a suit “any time [] the court determines that . . . (B) the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” Id. § 1915(e)(2).
A claim may be dismissed as frivolous under Section 1915(e)(2)(B)(i) “where it lacks an
arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is
frivolous as a matter of law where, inter alia, the claim seeks to enforce a right which clearly does
not exist. Id. at 327.
Moreover, a pleading “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face,’” meaning that it must contain “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). While a court must accept well-pleaded factual allegations as true, “conclusory
allegations . . . are not entitled to an assumption of truth—legal conclusions must be supported
by factual allegations.” Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings
are construed broadly,” Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir.
2006), and the allegations in the complaint are viewed in the light most favorable to the plaintiff,
Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). “Pro se pleadings are
held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, “this
leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. County of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds as recognized in
Randall, 610 F.3d 701. At bottom, the question is not whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court’s threshold.” Skinner
v. Switzer, 562 U.S. 521, 530 (2011).
Howard’s Complaint appears to bring claims under 42 U.S.C. § 1983 against Defendant
Cumberland Farms, a private company, arising from an arrest by City of Hollywood police officers
that took place while he was on the premises of a Cumberland Farms store. As Judge Bloom
recently explained in an order dismissing another of Howard’s Section 1983 complaints brought
against a private company:
In order to state a claim under that section, a plaintiff must plead that he was
(1) deprived of a right; (2) secured by the Constitution or laws of the United States;
and (3) that the alleged deprivation was committed under color of state law. See
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Rayburn v. Hogue, 241
F.3d 1341, 1348 (11th Cir. 2001). An action under color of state law or state action
requires “an alleged constitutional deprivation caused by the exercise of some right
or privilege created by the State or by a rule of conduct imposed by the State or by
a person for whom the State is responsible, and that the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Am. Mfrs.
2
Mut. Ins. Co., 526 U.S. at 50 (internal quotations omitted) (emphasis in original).
“Only in rare circumstances can a private party be viewed as a state actor for Section
1983 purposes.” Rayburn, 241 F.3d at 1347 (internal quotations and alterations
omitted). To hold that private parties are state actors, the court must conclude that
one of the following three conditions is met: “(1) the State has coerced or at least
significantly encouraged the action alleged to violate the Constitution (‘State compulsion test’); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (‘public function test’); or (3) the State
had so far insinuated itself into a position of interdependence with the [private
parties] that it was a joint participant in the enterprise (‘nexus/joint action test’).” Id.
(internal quotations and alterations omitted).
Order Denying Leave to Proceed In Forma Pauperis and Dismissing Case at 2-3, Howard v. BHC
Sec., No. 16-62622, ECF No. 5 (S.D. Fla. Nov. 8, 2016). Just as Judge Bloom found in BHC, this
Court “finds it clear that none of ‘rare circumstances’ allowing for ‘a private party [to] be viewed
as a state actor are present” here. Id. at 3 (quoting Rayburn, 241 F.3d at 1347). Howard has brought
a Section 1983 claim against this Defendant based on the sole fact that he happened to be on the
premises of a store operated by the Defendant when he was arrested by the City of Hollywood
police. But he has proffered no allegations that the Defendant actually injured him in any way.
Even under the “less stringent standard” governing pro se pleadings, Tannenbaum, 148 F.3d at
1263, Howard’s Complaint fails to state a claim upon which relief can be granted. Alternatively,
Howard’s Section 1983 claim, brought against the owner or operator of the location where an
arrest occurred, is frivolous because it has no arguable basis in law or fact. Either way, the Complaint is due to be dismissed.
The Eleventh Circuit instructs that “[w]hen it appears that a pro se plaintiff’s complaint,
if more carefully drafted, might state a claim, the district court should give the pro se plaintiff an
opportunity to amend his complaint instead of dismissing it.” Humphrey v. Sec’y, U.S. Dep’t of
Homeland Sec., 597 F. App’x 571, 573 (11th Cir. 2014) (per curiam). Here, though, the Court finds
that no more careful drafting would allow Howard to state a claim against Cumberland Farms for
injuries allegedly occasioned upon him by the City of Hollywood Police; the Court therefore sees
3
no need to allow Howard the opportunity to amend his Complaint rather than dismiss it.
Accordingly, it is ORDERED AND ADJUDGED that the Plaintiff’s Complaint [ECF
No. 1] is DISMISSED WITH PREJUDICE, and his Motion to Proceed in forma pauperis [ECF
No. 3] is DENIED.
This action is CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, this 16th day of November, 2016.
________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?