Treesh v. Lautrec Ltd et al

Filing 3

OPINION AND ORDER DENYING 2 MOTION for Leave to Proceed in forma pauperis filed by William Lee Treesh and DISMISSING case pursuant to 28:1915(e)(2)(B)(ii). Signed by Judge Rudy Lozano on 10/26/06. (jcp)

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Treesh v. Lautrec Ltd et al Doc. 3 case 1:06-cv-00345-RL-RBC document 3 filed 10/26/2006 page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION WILLIAM LEE TREESH, Plaintiff, vs. LAUTREC, LTD. et al., Defendants. ) ) ) ) ) ) ) ) ) CAUSE NO. 1:06-CV-345 OPINION AND ORDER This matter is before the court on the Application to Proceed Without Prepayment of Fees and Affidavit, filed by William Lee Treesh on October 17. 2006. For the reasons set forth below, the Court DENIES the application and DISMISSES this case pursuant to 28 U.S.C. section 1915(e)(2)(B)(ii). BACKGROUND William Lee Treesh ("Treesh"), a pro se plaintiff, submitted a complaint under 42 U.S.C. section 1983. Treesh alleges that Lautrec, Ltd., its Vice President Gary Griglak, its District Manager Carol Martin, and its Manager Wendy McCoy violated his constitutional rights to freedom of speech and freedom of the press. Dockets.Justia.com case 1:06-cv-00345-RL-RBC document 3 filed 10/26/2006 page 2 of 3 DISCUSSION Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted. 28 U.S.C. 1915(e)(2)(B)(ii). 42 U.S.C. section 1983 provides a private right of action to redress the deprivation of a constitutional right by a state actor. In order to state a cause of action under 42 U.S.C. 1983, the Supreme Court requires only two elements: First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of the right acted under color of state law. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (citations, quotation marks and ellipsis omitted). For the individual defendants to act "under color of state law" for 1983 purposes means to misuse power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. As a result, acts by a state officer are not made under color of state law unless they are related in some way to the performance of the duties of the state office. Thurman v. Village of Homewood, 446 F.3d 682, 687 (7th Cir. 2006) (quotation marks, brackets, and citation omitted). Here, none of Defendants are state officers; they are a private company and its employees. None of their power or authority was derived from state law and nothing they did was done in the performance of an official office. Neither were they federal employees or acting pursuant to -2- case 1:06-cv-00345-RL-RBC document 3 filed 10/26/2006 page 3 of 3 federal law. Therefore these Defendants could not have violated either section 1983 or his constitutional rights. Though Treesh may have disagreements with these Defendants, those conflicts are not adjudicable in this case. CONCLUSION For the reasons set forth above, the Court DENIES the application for in forma pauperis status and DISMISSES this case pursuant to 28 U.S.C. section 1915(e)(2)(B)(ii). DATED: October 26, 2006 /s/RUDY LOZANO, Judge United States District Court -3-

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