JENKINS et al v. LOWE'S HOME CENTER, INC. et al

Filing 7

ORDER DISMISSING CASE as Frivolous. Ordered by Judge Hugh Lawson on 8/3/2010. (nbp)

JENKINS et al v. LOWE'S HOME CENTER, INC. et al

Doc. 7

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V A LD O ST A DIVISION ROBERT L. JENKINS, C A R O LIN E J. BARNES, : : : P la in tiffs : : V S. : : LO W E 'S HOME CENTER, INC., : e t al., : : D e fe n d a n ts : __________________________________

C IV IL ACTION NO.: 7:10-CV-71 (HL)

ORDER

P la in tiff ROBERT L. JENKINS, an inmate at the Southern State Correctional F a c ility in Delmont, New Jersey, filed an action, which he states is a "Civil Action a u th o riz e d by 41 (sic) U.S.C. § 1983 to redress the deprivation, under color of State law, or R igh ts secured by the Constitution of the United States." (Compl., p. 1). He filed this action in the United States District Court, District of New Jersey. That Court transferred the action to the this Court because "all or a substantial part of the events or omissions giving rise to th e claim occurred [in the Middle District of Georgia] and . . . the Complaint suggests that a ll defendants can be found [in the Middle District of Georgia]." (R. at 4). I. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial s c re e n in g of a prisoner complaint "which seeks redress from a governmental entity or officer o r employee of a governmental entity." Section 1915A(b) requires a federal court to dismiss a prisoner complaint that is: (1) "frivolous, malicious, or fails to state a claim upon which re lie f may be granted"; or (2) "seeks monetary relief from a defendant who is immune from

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such relief." A claim is frivolous when it appears from the face of the complaint that the factual a lle ga t i o n s are "clearly baseless" or that the legal theories are "indisputably meritless." C a r r o ll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim when it does not include "enough factual matter (taken as true)" to "give the defendant fair notice o f what the . . . claim is and the grounds upon which it rests[.]" Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544, 555-56 (2007) (noting that "[f]actual allegations must be enough to raise a right to relief above the speculative level," and that the complaint "must contain s o m e th in g more . . . than ... a statement of facts that merely creates a suspicion [of] a legally c o gn iz a b le right of action") (internal quotations and citations omitted); see also Ashcroft v. I q b a l, 129 S. Ct. 1937, 1949 (2009) (explaining that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice"). In making the above determinations, all factual allegations in the complaint must be vie w e d as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover, "[p]ro s e pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, th e re fo re , be liberally construed." Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th C ir. 1998). Robert Jenkins states that he is bringing this action under 42 U.S.C. § 1983. In order t o state a claim for relief under § 1983, a plaintiff must allege that: (1) an act or omission d e p rive d him of a right, privilege, or immunity secured by the Constitution or a statute of the U n ite d States; and (2) the act or omission was committed by a person acting under color of s ta te law. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir. 1995). If a litigant

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cannot satisfy these requirements, or fails to provide factual allegations in support of his c la im or claims, then the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1 2 7 9 , 1282-84 (11th Cir. 2003) (affirming the district court's dismissal of a § 1983 complaint b e c a u s e the plaintiff's factual allegations were insufficient to support the alleged c o n s titu tio n a l violation). See also 28 U.S.C. 1915A(b) (dictating that a complaint, or any p o rtio n thereof, that does not pass the standard in § 1915A "shall" be dismissed on p re lim in a ry review). II. STATEMENT AND ANALYSIS OF CLAIMS Robert L. Jenkins has named both himself and Caroline J. Barnes as plaintiffs in this a c tio n . Mr. Jenkins states that he is a "prisoner of the State of New Jersey Department of C o rre c tio n s " and that Caroline J. Barnes is "a black American woman residing at 2741 D o gw o o d Circle[,] Valdosta, Georgia." (Compl., p. 2). Ms. Barnes has not signed the c o m p la in t in this action, nor has she sought leave to proceed in forma pauperis. Instead, it a p p e a rs that Mr. Jenkins is attempting to bring this action on her behalf. Mr. Jenkins states th a t he is "a prisoner submitting on behalf of plaintiff (Caroline J. Barnes)." (Compl., p. 7). R o b e rt Jenkins maintains that "on or about September 19, 2008 the plaintiff selected a n d purchased a signature brand exterior house and trim paint" from Lowe's Home Center, In c . ("Lowe's"). (Compl., p. 4). He states this was for "stage one of plaintiff's home im p ro ve m e n t project." (Compl., p. 4-5). According to Mr. Jenkins, either he or Ms. Barnes re tu rn e d to Lowe's on September 29, 2008 to purchase more paint and the "purported te c h n i c i a n s chemically prepared, and sold plaintiff a bogus brand" that "result[ed] in the d is c o lo ra tio n of plaintiff (sic) home until this day." (Compl., p. 5). Thereafter, either he or

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Ms. Barnes complained to customer service at Lowe's on October 1, 2008. Mr. Jenkins s ta te s that defendant Corbin Neely agreed to replace 10 gallons of paint and "scheduled an a p p o in tm e n t with painter [Robert Jenkins] and Assistant Manager Scott Storey." (Compl., p . 5). According to Mr. Jenkins, Corbin Neely hired and paid him an undisclosed amount o f money "to reapply the corrected product," but then "refused to supply the additional (c o rre c t) product for job completion" so Caroline Barnes' home was left discolored. (Compl., p. 5). Mr. Jenkins states that "Corbin Neely begin (sic) a series of encroachment phone calls to the plaintiff (Caroline Barnes) apparently concluding that (1) she was uneducated, and (2) c o u ld not be the homeowner" and this violates "plaintiff's Constitutional and Statutory Civil R igh ts " under 42 U.S.C. § 1981, 1982, 1983, and 1985. (Compl., p. 6). Mr. Jenkins states th a t the defendants "went in disguise on the plaintiff (sic) property for the sole purpose of d e p rivin g said rights either directly or indirectly on or about November 25, 2008." (Compl., p . 6). Mr. Jenkins alleges that Ms. Barnes "has been deprived of rights which, under similar c irc u m sta n c e s , would have been accorded to a white person." (Compl., p. 6). Apparently, in October 2008, Ms. Barnes filed a complaint against Lowe's in the M a gis tra te Court of Lowndes County. According to an exhibit attached to Mr. Jenkins' c o m p la in t, "Caroline Barnes filed a lawsuit against [Lowe's] . . . apparently alleging n e glige n c e as a result of selling [her] the wrong paint." (Compl., p. 10-11). On November 2 8 , 2008, Lowe's filed a "Notice of Negligence of Non-Party" that named Mr. Jenkins as the n o n -p a rty who was wholly or partially at fault for the events that gave rise to the lawsuit. (Compl., p. 10-11). Mr. Jenkins does not disclose the outcome of this lawsuit. Mr. Jenkins requests the Court allow him to proceed in this action on behalf of

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Caroline Barnes; prohibit all defendants from harassing or retaliating against either plaintiff; a n d award plaintiffs 17 million in compensatory damages along with 4 million in punitive d a m a ge s. (Compl., p. 7-8). As noted above, Caroline Barnes has not signed this complaint. Pursuant to Fed. R. C iv. Proc. 11, every pleading must be signed by the party personally if she is unrepresented b y counsel. Therefore, the Court finds that Robert Jenkins is the sole plaintiff in this action. Should Caroline Barnes wish to file a civil action in this Court, she may do so. However, she w ill need to sign any complaint that she files and either pay the $350.00 filing fee or petition th e Court to proceed in forma pauperis and complete the necessary non-prisoner in forma p a u p e ris affidavit. Additionally, the Court finds that Robert Jenkins has no standing to assert claims on b e h a lf of Caroline Barnes. Mr. Jenkins states that Lowe's and its employees have violated M s . Barnes' rights under 42 U.S.C. § 1981, 1982, 1983, and 1985. However, Mr. Jenkins d o e s not appear to be the appointed guardian, conservator, or other official representative of M s . Barnes. Therefore, Mr. Jenkins has no standing to sue on behalf of Ms. Barnes for any a lle ge d violations of her constitutional rights. See generally Allen v. Wright, 468 U.S. 737, 7 5 1 (1984) (a party generally may assert only his or her own rights and cannot raise the c la im s of third parties not before the court). If Ms. Barnes wishes to exercise her legal rights, s h e must do so on her own behalf. Finally, to any extent that Mr. Jenkins is attempting to file a 42 U.S.C. § 1983 action o n his own behalf, he has not shown that any of the defendants' alleged acts or omissions have deprived him of a right, privilege, or immunity secured by the Constitution of the U n ite d States. See Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032

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(11th Cir. 1987). Additionally, Lowe's and its employees are not state actors. "A successful s e c tio n 1983 action requires a showing that the conduct complained of . . . was committed b y a person acting under color of state law." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th C ir. 1992). Mr. Jenkins has not shown that any actions taken by Lowe's or its employees w e re undertaken "under color of state law." Id. Specifically, Lowe's and its employees are p riva te parties; not state actors subject to liability under § 1983. See Hogland v. Athens R e g 'l Health Servs., No. 3:04-CV-50, 2005 U.S. Dist LEXIS 7763 at *28-29 (M.D. Ga. Jan. 2 1 , 2005). Finally, the results of the civil action filed by Ms. Barnes against Lowe's in the M a gis tra te Court of Lowndes County are unclear. However, to any extent that Robert J e n kin s seeks to appeal the ruling of that case, a federal district court does not have authority to act as a court of appeals to challenge a decision of a state court. District of Columbia C o u r t of Appeals v. Feldman, 460 U.S. 462, 476 (1983). Based on these findings, this action must be DISMISSED as frivolous pursuant to 28 U .S.C . § 1915A. 1 S O ORDERED, this 3 rd day of August, 2010.

s / Hugh Lawson HUGH LAWSON U N IT E D STATES DISTRICT JUDGE

ln b

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T h e Application for Pro Bono counsel is DISMISSED AS MOOT.

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