Johnson v. Alexander
MEMORANDUM OPINION. Signed by District Judge Henry T. Wingate on 4/22/2011 (SM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ROY LEE JOHNSON
CIVIL ACTION NO. 4:11-cv-52-HTW-LRA
MEMORANDUM OPINION AND ORDER
This cause is before the Court, sua sponte, for consideration of dismissal. Plaintiff, an
inmate at the Mississippi State Penitentiary, Parchman, Mississippi, filed this complaint pursuant
to 42 U.S.C. § 1983. The only named Defendant is Rachel Alexander, whose address is 259
Kelly Street, Philadelphia, Mississippi 39350. Compl.  at p. 6. Plaintiff seeks monetary
damages as relief.
According to the complaint , Defendant Alexander accused the Plaintiff of rape.
Plaintiff was then arrested and charged with the rape of Defendant Alexander. Compl.  at p.
4. Thereafter, Plaintiff went to trial for this charge and was found not guilty because of a lack of
evidence. Id. Plaintiff has filed the instant complaint against Defendant Alexander because of
her alleged false allegations which resulted in Plaintiff’s arrest and subsequent trial. Id. at p. 7.
Title 28 U.S.C. Section 1915(e)(2)1 “accords judges not only the authority to dismiss a
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
(A) the allegation of poverty is untrue; or
(B) the action or appeal
is frivolous or malicious;
fails to state a claim on which relief may be granted; or
claim based on an indisputably meritless legal theory, but also the unusual power to pierce the
veil of the complaint' factual allegations and dismiss those claims whose factual contentions are
clearly baseless.” See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Denton v. Hernandez, 504
U.S. 25, 32 (1992); and Macias v. Raul A., 23 F.3d 94, 97 (5th Cir.1994). “A district court may
dismiss an in forma pauperis proceeding as frivolous under 28 U.S.C. § 1915(d) whenever it
appears that the claim' realistic chance of ultimate success is slight or the claim has no arguable
basis in law or fact.” Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S.
1235 (1991). See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Parker v. Carpenter, 978 F.2d
190, 191 n.1 (5th Cir. 1992); Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992);
Henthorn v. Swinson, 955 F.2d 351, 352 (5th Cir.), cert. denied, 504 U.S. 988 (1992). “[I]n an
action proceeding under Section 1915(d), [a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they have not been addressed” or raised in
the pleadings on file. Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly, the court is
authorized to test the proceeding for frivolousness or maliciousness even before service of
process or before the filing of the answer.” Id. As discussed below, the Plaintiff cannot maintain
this action pursuant to 42 U.S.C. § 1983 against the named Defendant.
In order to have a viable claim under 42 U.S.C. § 1983, Plaintiff must (1) allege a violation
of rights 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. West v. Atkins,
487 U.S. 42, 48 (1988); Daniel v. Ferguson, 839 F.2d 1124 (5th Cir. 1988). The United States
(iii) seeks monetary relief against a defendant who is immune from
Supreme Court concluded that, in order to act under color of state law, the defendant in a section
1983 action must have exercised power which the defendant possessed by virtue of state law, and
the exercise of that power must be made possible only because the wrongdoer is clothed with
authority of state law. West, 487 U.S. at 49 (citing United States v. Classic, 313 U.S. 299, 326
Regarding the instant complaint, there is neither an allegation nor a factual basis to
establish that Defendant Alexander is a state actor. The record indicates that Defendant
Alexander is a private citizen. Any deprivation Plaintiff allegedly suffered from Defendant
Alexander was not "under color of state law." The Court finds that Plaintiff’s claims are not
cognizable under 42 U.S.C. § 1983; therefore, this action should be dismissed.
As discussed above, Plaintiff has failed to assert a claim against a state actor as required by
42 U.S.C. § 1983. Consequently, the Court finds this complaint should be dismissed with prejudice
as legally frivolous pursuant to the Prison Litigation Reform Act [PLRA], 28 U.S.C.
Because this case will be dismissed pursuant to the above mentioned provision of the PLRA,
it will be counted as a “strike”. See 28 U.S.C. § 1915(g). If Plaintiff receives “three strikes”, he
will be denied in forma pauperis status and required to pay the full filing fee to file a civil action or
A Final Judgment in accordance with this Memorandum Opinion and Order shall issue this
SO ORDERED, this the 22nd day of April, 2011.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE
Memorandum Opinion and Order
Civil action no. 4:11-cv-52-HTW-LRA
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