Ben v. Garden District Association et al

Filing 7

ORDER AFFIRMING REPORT AND RECOMMENDATIONS 5 and Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Ivan L.R. Lemelle.(ijg, )(NEF: MJ Knowles)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JAMES BEN

CIVIL ACTION

VERSUS

NO. 12-174

GARDEN DISTRICT
ASSOCIATION, ET AL

SECTION: “B”(3)
ORDER AND REASONS

Before

the

Court

is

pro

se

Plaintiff’s,

James

Ben,

Objections (Rec. Doc. No. 6) to the Magistrate Judge’s Report and
Recommendation (Rec. Doc. No. 5), recommending dismissal with
prejudice of Plaintiff’s claims.

(Rec. Doc. No. 5).

For the

reasons below,
IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge be AFFIRMED and Plaintiff’s claims are DISMISSED
WITH PREJUDICE.
PROCEDURAL HISTORY
On January 27, 2012, Plaintiff filed the instant action
against the Garden District Association (“Association”), Arthur
Jones,

III

(“Defendant

Patrol

Service,

Inc.

Jones”),
(“NOPP”),

and

the

New

collectively

Orleans

Private

(“Defendants”),

alleging violations of his constitutional rights under 42 U.S.C.
§§ 1983 and 2000.

(Rec. Doc. No. 1 at 3).

Plaintiff filed this

instant proceeding in forma pauperis, stating that he does not
have the money to pay the requisite court fees.
at 7).

(Rec. Doc. No. 1

This Court granted Plaintiff’s motion to proceed in forma

pauperis.

(Rec. Doc. No. 3).

After filing the complaint, this Court ordered Plaintiff to
show, in writing, that cause exists and why the case should not
be immediately dismissed for lack of subject matter jurisdiction.
(Rec. Doc. No. 3).

The Magistrate Judge allowed Plaintiff to

file a reply, arguing why he believes cause exists.

(Rec. Doc.

No. 3 at 2).
In response to the Magistrate Judge’s order, Plaintiff filed
a more detailed account of the allegations.
Plaintiff

alleged

that

while

he

was

(Rec. Doc. No. 4).

driving

in

the

Garden

District neighborhood of New Orleans, Louisiana, he was being
followed

by

Commander’s
Plaintiff

Defendant
Palace

asserts

Jones

and

Restaurant.
after

he

pulled
(Rec.

exited

his

over

Doc.

in

No.

car,

4

front
at

Defendant

of

2).
Jones

approached Plaintiff’s car and said, “I am going to show you what
happens to people who goes [sic] around threatening people.”
(Rec. Doc. No. 4 at 2).
Defendant

Jones,

and

A fight ensued between Plaintiff,

another

member

of

the

Association,

Plaintiff was handcuffed and held on the ground.
4 at 2-3).

and

(Rec. Doc. No.

Plaintiff alleged that the NOPD arrived on the scene

and then released him from the handcuffs.

(Rec. Doc. No. 4 at

2).
MAGISTRATE JUDGE’S FINDINGS
The Magistrate Judge recommended that Plaintiff’s claims be
dismissed with prejudice for lack of subject matter jurisdiction.
2

(Rec. Doc. No. 5 at 4).

The Magistrate Judge found that subject

matter jurisdiction does not exist in this case because Plaintiff
is unable to state a cognizable claim under federal law.

(Rec.

Doc. No. 5).
In order for Plaintiff to succeed in a § 1983 claim, he
would have to allege, “(1) a violation of a right secured by the
Constitution or laws of the United States and (2) demonstrate
that the alleged deprivation was committed by a person acting
under color of state law.”

(Rec. Doc. No. 5 at 3) (citing

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)).
The Magistrate Judge found that Plaintiff does not satisfy the
standard

because

Plaintiff

did

not

allege

a

constitutional

violation, nor were Defendants acting under the color of state
law.

See Adickes v. Kress & Co., 398 U.S. 144, 152 (1970); (Rec.

Doc. No. 5 at 3).

Because Plaintiff cannot establish a claim

under § 1983, then subject matter jurisdiction does not exist.
See 28 U.S.C. § 1331 (2012); see 28 U.S.C. § 1343(a)(3)-(4)
(2012).1
CONTENTIONS OF PLAINTIFF
Plaintiff

objects

to

the

Magistrate

Judge’s

findings,

arguing that Defendants were engaged with the NOPD, and that the
continued harassment by Defendants was a systematic pattern of
1

The Magistrate Judge also noted that there is no diversity jurisdiction in this
case because Plaintiff and Defendants are residents of the State of Louisiana.
(Rec. Doc. No. 5 at 4). Thus, the only remaining option for federal subject
matter jurisdiction is for a federal question under § 1331.

3

harassment.

(Rec. Doc. No. 6 at 1-3).

address

Magistrate

the

Judge’s

jurisdiction does not exist.

findings

Plaintiff does not
that

subject

matter

(Rec. Doc. No. 6).

LAW AND ANALYSIS
A. Standard of Review
Federal law states that for in forma pauperis cases, a court
shall dismiss a case at any time if the court determines that the
action is “(i) 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.”

28

U.S.C. § 1915(e)(2)(B) (2012).
The United States Court of Appeals for the Fifth Circuit has
held that a claim is frivolous if it lacks an arguable basis in
law or fact.
1998).

Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.

The Fifth Circuit has also held that a claim is malicious

if the claims have already been asserted by the plaintiff in a
pending

or

defendants.

previous

lawsuit

against

the

same

or

different

Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.

1988).
B. Subject Matter Jurisdiction Does Not Exist Because Plaintiff
Cannot State a Claim for Relief Under § 1983.
1. Jurisdiction Under § 1331 or § 1343
Section

1331

provides

district

courts

with

original

jurisdiction over cases arising under the Constitution or federal
law.

See

28

U.S.C.

§

1331.

Section
4

1343(a)(3)

allows

a

plaintiff to recover damages for deprivation of a right secured
by the Constitution or an Act of Congress.
1343(a)(3).

See 28 U.S.C. §

Section 1343(a)(4) further provides that district

courts shall be courts of original jurisdiction in order to
recover

damages

or

equitable

rights.

relief

28 U.S.C. § 1343(a)(4).

for

protection

of

civil

In order for this Court to have

jurisdiction to adjudicate the claim, Plaintiff must be able to
state a claim for relief under federal law, specifically § 1983.
2. Plaintiff Does Not State a Cognizable Claim Under § 1983
In

order

for

this

court

to

have

jurisdiction

over

Plaintiff’s claims, Plaintiff must state a cognizable claim under
§ 1983.

To state a claim under § 1983, there must be “(1) a

deprivation of a right secured by federal law (2) that occurred
under color of state law, and (3) was caused by a state actor.”
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004).

A

plaintiff may satisfy the “color of law” requirement by proving
that the action is fairly attributable to the state.
A-Able Bonding, 75 F.3d 200, 204 (5th Cir. 1996).

Landry v.

For the action

to be fairly attributable to the state, the plaintiff must prove
that “the deprivation is caused by the exercise of a statecreated right or privilege, by a state imposed rule of conduct,
or by a person for whom the state is responsible, and . . that
the party charged with the deprivation may be fairly described as
a state actor.”

Id.
5

A private party may be considered a state actor, and liable
under § 1983, if he or she is acting under the color of law.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).

To act

under the color of law, a person only needs to be a willful
participant, acting with the state or an agent of the state.

Id.

In the present case, Plaintiff’s allegations fall short of
stating a claim under § 1983 because Defendants were not state
actors and were not acting under the color of law.

See (Rec.

Doc. No. 1). Plaintiff attempts to demonstrate that Defendants
were acting in concert with the NOPD, by them “mediating” the
disputes between Plaintiff and Defendants, thereby violating his
constitutional rights.
No. 6 at 2).

See Adickes, 398 U.S. at 152; (Rec. Doc.

Plaintiff does not allege that Defendants were

acting in concert with the NOPD or as an agent of the NOPD, nor
does the Plaintiff make any claims against the NOPD.

(Rec. Doc.

No. 4 at 3). In fact, Plaintiff alleges that the NOPD helped him
upon arriving at the scene of the incident.2

(Rec. Doc. No. 4 at

3).
Plaintiff’s

second

objection

is

also

without

merit.

Plaintiff argues that he sufficiently set out a cause of action

2

Plaintiff stated that when NOPD arrived on the scene, the officer told the
defendant, “[m]an you went over the line, You got personal.” (Rec. Doc. No. 4
at 3).

6

against Defendants.3

(Rec. Doc. No. 6 at 3).

Plaintiff, again,

alleges that Defendants were acting under the color of state law
with the NOPD.

(Rec. Doc. No. 6 at 3).

As stated above, since

Defendants were not state actors and were not engaged in activity
with the NOPD, but were private citizens acting as a community
watch group, Plaintiff is unable to state a claim for recovery
under § 1983.

See Adickes, 398 U.S. at 152.

New Orleans, Louisiana, this 22nd day of June, 2012.

________________________________
UNITED STATES DISTRICT JUDGE

3

Plaintiff cites Hernandez v. Noel in support of this position, however, this
case is not binding upon this Court. Hernandez v. Noel, 323 F. Supp. 779 (D.
Conn. 1970).

7