Jenkins v. Medlock Tavern, Inc et al

Filing 5

ORDER DISMISSING CASE AS FRIVOLOUS pursuant to 28 USC 1915A, and the Clerk is DIRECTED to close this action. Signed by Judge Richard W. Story on 8/27/2013. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DUANE ALLEN JENKINS,
Plaintiff,
v.
MEDLOCK TAVERN, INC.,
STEPHEN JOHN CLARK,
STEWART STAHL, DANIEL
SEXTON, MIKE BURDICK, and
PETER WOOLVERTON,
Defendants.

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CIVIL ACTION NO.
1:13-CV-2643-RWS

ORDER
On August 13, 2013, Magistrate Judge J. Clay Fuller entered an Order [2]
permitting Plaintiff to proceed in forma pauperis in this action. The case was
then referred to the undersigned for a frivolity determination. Having carefully
considered the record, the Court enters the following order.
Background
Plaintiff’s Complaint was filed on August 13, 2013 [3]. The Complaint
sets forth four causes of action: (1) a claim for a violation of Plaintiff’s civil
rights, pursuant to 42 U.S.C. § 1983, (2) a claim for false reporting of a crime,
in violation of 18 U.S.C. § 1038, (3) a claim for malicious prosecution, in

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violation of 42 U.S.C. § 1983, and (4) a claim for making false statements to a
law enforcement officer, in violation of 18 U.S.C. § 1001. Plaintiff asserts
these claims against Defendant Medlock Tavern, a Georgia corporation, as well
as individuals who appear to be officers, owners, and managers of Defendant
Medlock Tavern.
Analysis
Pursuant to 28 U.S.C. § 1915(e)(2)(B), “the court shall dismiss the case
at any time if the court determines that . . . 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.” A claim
is frivolous when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably
meritless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carrol v. Gross,
984 F.2d 393, 393 (11th Cir. 1993).
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” “labels and conclusions” or “a formulaic recitation of the elements
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of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Because Plaintiffs are proceeding pro se, their “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). “This leniency, however, does not require or allow courts to
rewrite an otherwise deficient pleading in order to sustain an action.” Thomas
v. Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
As to Plaintiff’s first claim, it appears that Plaintiff is asserting a claim
under 42 U.S.C. § 1983. In order to prevail on a civil rights action under §
1983, a plaintiff must make a prima facie showing of two elements: (1) that the
act or omission at issue deprived plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States, and (2) that the act or
omission was done by a person acting under color of law. The Supreme Court
has stated that the definition of “acting under color of law” requires that a
defendant in a § 1983 action “exercised power possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of
state law.” West v. Atkins, 487 U.S. 42, 49 (1988). In this case, Plaintiff has
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brought suit against a corporation and private actors who were not exercising a
power possessed by virtue of state law. As a result, Plaintiff fails to state a §
1983 claim as a matter of law.
As to Plaintiff’s claim pursuant to 18 U.S.C. § 1038, this statute is a
criminal statute which makes it illegal to convey false or misleading
information. There is not a private cause of action under this statute that would
enable Plaintiff to bring a suit for damages under these circumstances. As a
result, Plaintiff fails to state a claim pursuant to 18 U.S.C. § 1038.
As to Plaintiff’s claim of malicious prosecution brought pursuant to 42
U.S.C. § 1983, for the reasons stated above regarding Plaintiff’s first claim,
Plaintiff has failed to state a claim.
As to Plaintiff’s claim pursuant to 18 U.S.C. § 1001, this statute is a
criminal statute which makes it illegal to make false statements to the
government. There is not a private cause of action under this statute that would
enable Plaintiff to bring a suit for damages under these circumstances. As a
result, Plaintiff fails to state a claim pursuant to 18 U.S.C. § 1001.
Conclusion
For the reasons stated above, Plaintiff’s Complaint [3] does not survive
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this Court’s frivolity determination. The case is DISMISSED, and the Clerk is
DIRECTED to close this action.
SO ORDERED, this 27th

day of August, 2013.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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