Womack v. McKernan et al

Filing 9

MEMORANDUM AND ORDER - Plaintiff's Complaint 1 fails to state a claim upon which relief may be granted. However, Plaintiff shall have until June 6, 2011, to amend his Complaint in accordance with this Memorandum and Order. If Plaintiff fails to file an amended complaint, Plaintiff's claims against Defendants will be dismissed without further notice. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Check for amended complaint on June 6, 2011. Plaintiff shall keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party) (KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GEOFFREY LEWIS WOMACK,
Plaintiff,
v.
PATRICK J. MCKERNAN, REY
RIOS, and MIKE KING,
Defendants.

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8:11CV97

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on March 16, 2011. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No.
5.) The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint in this matter on March 16, 2011, against three
staff members of the Open Door Mission, a nonprofit organization in Omaha,
Nebraska. (Filing No. 1 at CM/ECF pp. 1, 6.) Condensed and summarized, Plaintiff
alleges that Defendants sexually harassed, slandered and defamed Plaintiff. (Id. at
CM/ECF pp. 2-4.) Plaintiff also alleges that Defendants discriminated against him
because they permitted “white males” to rest, but asked him to perform duties even
though he had a temporary medical pass. (Id. at CM/ECF p. 3.) Plaintiff asks the
court to “investigate” and “prepare” his claims for a “criminal/civil” action before a
judge. (Id.)

II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion thereof that states a frivolous or malicious claim,
that fails to state a claim upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III.

DISCUSSION OF CLAIMS
A.

State Actor

To obtain relief under 42 U.S.C. § 1983, a plaintiff must show (1) the
deprivation of a right secured by the Constitution or laws of the United States, and
(2) that a person acting under color of state law caused the deprivation. West v.
Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993). “The ultimate issue in determining whether a person is subject to suit under
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§ 1983 is the same question posed in cases arising under the Fourteenth Amendment:
is the alleged infringement of federal rights ‘fairly attributable to the State?’”
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982). Thus, an allegation that a private entity has deprived the
plaintiff of a constitutional right fails to state a cause of action under 42 U.S.C. §
1983. See, e.g., Pino v. Higgs, 75 F.3d 1461, 1464-67 (10th Cir. 1996) (“To bring
a claim under § 1983, a plaintiff must initially establish that a defendant acted ‘under
color of any statute, ordinance, regulation, custom, or usage, of any State’ to deprive
the plaintiff of ‘any rights, privileges, or immunities secured by the Constitution and
laws’ of the United States. 42 U.S.C. § 1983.” (citations omitted)). Therefore, if the
actions of the defendant were “not state action, our inquiry ends.” Rendell-Baker,
457 U.S. at 838.
Here, Plaintiff does not allege that Defendants are state actors or that
Defendants’ actions were fairly attributable to the state. In short, Plaintiff has failed
to allege sufficient facts for the court to reasonably infer that Defendants acted under
color of state law. However, on the court’s own motion Plaintiff shall have 21 days
to file an amended complaint to establish that Defendants are state actors or that they
acted under color of state law.
B.

Equal Protection

Liberally construed, Plaintiff asserts that Defendants violated his equal
protection rights because they requested that he perform duties when he had a
temporary medical pass. (Filing No. 1 at CM/ECF p. 3.) To establish an equal
protection violation, Plaintiff must identify a class of similarly situated persons who
are treated dissimilarly. See Anderson v. Cass County, Mo., 367 F.3d 741, 747 (8th
Cir. 2004). Although Plaintiff asserts that “white males” were permitted to rest, he
does not specify his race or identify a similarly situated person who was treated
dissimilarly. Accordingly, Plaintiff has failed to allege sufficient facts to state an
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equal protection claim upon which relief may be granted. However, because the court
is permitting Plaintiff to amend his complaint, Plaintiff shall have 21 days to file an
amended complaint that clearly states an equal protection claim upon which relief
may be granted.
C.

State Law Claims

Liberally construing the Complaint, Plaintiff may also have claims for
violations of state law such as slander, assault and defamation. Pending amendment
of the Complaint as set forth in this Memorandum and Order, the court makes no
finding regarding its jurisdiction over any potential state law claims. In the event that
Plaintiff fails to amend his Complaint in accordance with this Memorandum and
Order, the court will not retain jurisdiction over any state law claims and those claims
will be dismissed without prejudice to reassertion in state court.1
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Complaint (filing no. 1) fails to state a claim upon which relief
may be granted. However, Plaintiff shall have until June 6, 2011, to amend his
Complaint in accordance with this Memorandum and Order. If Plaintiff fails to file
an amended complaint, Plaintiff’s claims against Defendants will be dismissed
1

To the extent that Plaintiff asks the court to initiate a criminal investigation or
prosecution, his request lacks merit. A private plaintiff cannot force a criminal
prosecution because the “authority to initiate a criminal complaint rests exclusively
with state and federal prosecutors.” See Mercer v. Lexington Fayette Urban Cnty
Gov’t., No. 94-6645, 1995 WL 222178, at *1 (6th Cir. Apr. 13, 1995) (unpublished
order); see also United States v. Batchelder, 442 U.S. 114, 124 (1979) (“Whether to
prosecute and what charge to file or bring before a grand jury are decisions that
generally rest in the prosecutor’s discretion.”); Rzayeva v. United States, 492 F. Supp.
2d 60, 73 (D. Conn. 2007) (“[T]his Court lacks jurisdiction to order federal agents to
initiate a prosecution.”).
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without further notice.
2.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint (filing no. 1), and any new allegations.
Failure to consolidate all claims into one document may result in the abandonment
of claims.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: “Check for amended complaint on June
6, 2011.”
4.
Plaintiff shall keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal without
further notice.
DATED this 16th day of May, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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