Franckewitz v. ViaPath Technologies

Filing 7

MEMORANDUM OPINION. Signed by Judge Deborah L. Boardman on 11/26/2024. (c/m) (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHNATHAN W. FRANCKEWITZ,
Plaintiff

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v.

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VIAPATH TECHNOLOGIES,

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Defendant

Civ. No. DLB-24-3126

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MEMORANDUM OPINION

On October 25, 2024, Johnathan Franckewitz filed a complaint, ECF 1, and a motion to
proceed in forma pauperis, ECF 2, which the Court now grants. Franckewitz also filed two motions
to subpoena evidence, ECF 4 and 5, which are denied. For the reasons discussed below,
Franckewitz’s complaint is dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Franckewitz, an inmate confined at the Maryland Reception Diagnostic Classification
Center (“MRDCC”), filed this complaint pursuant to 42 U.S.C. § 1983 against Viapath
Technologies (“Viapath”), a company that provides electronic tablets to the prison for use by
inmates. He complains that, after a three-day WiFi outage, Viapath did not compensate him for his
loss of WiFi, despite its policy to do so. ECF 1, at 4. He also alleges that Viapath provides “two
totally different models of tablets” to MRDCC, the 5081G model, which does not “allow access
to iHeartRadio, nor does it provide a Radio app.,” and the newer TG0813 model, which does. Id.
at 4–5. Franckewitz states that his TG0813 model tablet was replaced with the older 5081G tablet,
and as a result he lost access to iHeartRadio and a Radio app. Id. He views this as discrimination
because some prisoners have the 5018G model and others have the TG0813 model.

While 28 U.S.C. § 1915(a)(1) permits an indigent litigant to commence an action in this
Court without prepaying the filing fee, the statute requires dismissal of any claim that is frivolous,
malicious, or fails to state a claim on which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)
and (ii). A claim “is frivolous where it lacks an arguable basis either in law or in fact . . . .” Neitzke
v. Williams, 490 U.S. 319, 325 (1989), superseded by 28 U.S.C. § 1915 on other grounds; Brett v.
Lewis, No. ELH-17-3813, 2018 WL 461414, at *1 (D. Md. Jan. 18, 2018).
The United States Code provides a federal cause of action for any individual who believes
a state actor has deprived them of a constitutional right. See 42 U.S.C. § 1983; City of Monterey v.
Del Monte Dunes, 526 U.S. 687, 707 (1999). The statute “is not itself a source of substantive
rights, but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright
v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
Two elements are essential to state a claim under § 1983: (1) the plaintiff must have suffered a
deprivation of “rights, privileges or immunities secured by the Constitution and laws” of the United
States; and (2) the act or omission causing the deprivation must have been committed by a person
acting under color of law. West v. Atkins, 487 U.S. 42, 48 (1988). “[A] person acts under color of
state law ‘only when exercising power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’” Polk Cty. v. Dodson, 454 U.S.
312, 317–18 (1981) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). “[P]rivate
activity will generally not be deemed state action unless the state has so dominated such activity
as to convert it to state action: Mere approval of or acquiescence in the initiatives of a private party
is insufficient.” Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 181 (4th Cir. 2009) (citations and
internal quotation marks omitted).

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“[P]ro se filings are ‘h[e]ld to less stringent standards than formal pleadings drafted by
lawyers.’” Folkes v. Nelsen, 34 F.4th 258, 272 (4th Cir. 2022) (quoting Haines v. Kerner, 404 U.S.
519, 520 (1972)). Accordingly, the Court must construe pro se pleadings liberally. Bing v. Brivo
Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020), cert. denied, 141 S. Ct. 1376 (2021). But “liberal
construction does not require [the Court] to attempt to ‘discern the unexpressed intent of the
plaintiff[;]’” the Court need only “determine the actual meaning of the words used in the
complaint.” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013) (quoting Laber v. Harvey, 438
F.3d 404, 413 n.3 (4th Cir. 2006) (en banc)). Thus, a pro se complaint “still ‘must contain enough
facts to state a claim for relief that is plausible on its face.’” Thomas v. The Salvation Army S.
Territory, 841 F.3d 632, at 637 (4th Cir. 2016) (quoting King v. Rubenstein, 825 F.3d 206, 212, 214
(4th Cir. 2016) (quoting Twombly, 550 U.S. at 570)).
Franckewitz does not allege that a person who is a State actor deprived him of anything to
which he is entitled under the Constitution or federal law. There is no constitutional right to possess
a tablet for access to radio programs. There is no allegation that the temporary loss of WiFi or the
lack of access to Franckewitz’s preferred apps has in anyway impacted upon a constitutional right.
Franckewitz’s conclusory assertion that the more limited services of his tablet in comparison to
other inmates’ tablets is “discriminatory” does not raise his claim beyond mere speculation.
Further, a private corporation that provides technology support to a correctional facility, as
the named defendant does, is not a State actor. “[T]he under-color-of-state-law element of § 1983
excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.’” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991,
1002 (1982)). While it is the ordinary practice to permit a pro se plaintiff to amend a complaint
that erroneously names the wrong party as a defendant but otherwise raises a colorable claim, this

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complaint does not raise a colorable claim and any amendment will not cure the deficiencies
presented.
Plaintiff is forewarned that his ability to file a complaint in federal court without first
paying the filing fee ($402) will be greatly curtailed if he has three actions or appeals dismissed
under the provisions of 28 U.S.C. §§ 1915(e)(2)(B)(i)(ii) and 1915A(b)(1) as frivolous, malicious,
or for failure to state a claim while he is incarcerated. See 28 U.S.C. § 1915(g).
By separate Order that follows, the complaint is dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B) (ii) for failure to state a claim.

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_____________________________
Debo
boorraah L. Boardma
Deborah
Boardman
United States District Judge

November 26, 2024
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Date

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