Harris v. Shand et al

Filing 8

Memorandum Opinion and Order: Accordingly, the request to proceed in forma pauperis is granted, and this action is dismissed under section 1915(e). Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Patricia A. Gaughan on 11/7/12. (LC,S) re 1 , 4

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

ROBERT-SCOTT HARRIS,
Plaintiff,
v.
NADIA SHAND, et al.,
Defendants.

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CASE NO. 1:12 CV 1845
JUDGE PATRICIA A. GAUGHAN

MEMORANDUM OF OPINION
AND ORDER

INTRODUCTION
On July 18, 2012, Plaintiff pro se Robert-Scott Harris filed this in forma pauperis action
against Nadia Shand, Annemarie De Tommaso, and JPMorgan Chase Bank, N.A. The
Complaint is unclear, but appears to question the validity of a debt concerning Plaintiff’s vehicle.
Plaintiff asserts jurisdiction under 42 U.S.C. §§ 1983 and 1985, and the Civil Rights Act of
1870. For the reasons stated below, this action is dismissed pursuant to 28 U.S.C. § 1915(e).

STANDARD OF REVIEW
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,

365 (1982) (per curiam), the district court is required to dismiss an action under 28 U.S.C. §
1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis
in law or fact.1 Neitzke v. Williams, 490 U.S. 319 (1989); Hill v. Lappin, 630 F.3d 468, 470 (6th
Cir. 2010).
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in the complaint.” Bell At. Corp. V. Twombly, 550 U.S. 544, 564 (2007). A
pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the
assumption that all the allegations in the complaint are true. Twombly, 550 U.S. at 555. The
plaintiff is not required to include detailed factual allegations, but must provide more than “an
unadorned, the-defendant-unlawfully-harmed-me accusation.”

Iqbal , 556 U.S. at 678 (2009).

A pleading that offers legal conclusions or a simple recitation of the elements of a cause of
action will not meet this pleading standard. Id.

LAW AND ANALYSIS
In Parratt v. Taylor, 451 U.S. 527, 535 (1981), the Supreme Court stated that "the initial
inquiry [in a section 1983 action] must focus on whether the two essential elements ... are

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An in forma pauperis claim may be dismissed sua sponte, without prior notice to the
plaintiff and without service of process on the defendant, if the court explicitly states that
it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim
for one of the reasons set forth in the statute. Chase Manhattan Mortg. Corp. v. Smith,
507 F.3d 910, 915 (6th Cir. 2007); Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir.
1990); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).
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present: (1) whether the conduct complained of was committed by a person acting under color of
state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States."
Generally to be considered to have acted “under color of state law,” the person must be a
state or local government official or employee. A private party may be found to have acted
under color of state law to establish the first element of this cause of action only when the party
“acted together with or ... obtained significant aid from state officials” and did so to such a
degree that its actions may properly be characterized as “state action.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982). An individual may also be considered a state actor if he or she
exercises powers traditionally reserved to a state. Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352 (1974). The Complaint does not contain allegations which might indicate Defendants
acted under color of state law and, therefore, the § 1983 claim is dismissed.
Plaintiff’s claim under 42 U.S.C. § 1985 must also be dismissed. To establish a violation
of 42 U.S.C. § 1985, Plaintiff must allege that the Defendants conspired together for the purpose
of depriving him of the equal protection of the laws and committed an act in furtherance of the
conspiracy which was motivated by racial or other class-based invidiously discriminatory
animus. Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999). Plaintiff simply does not allege
such facts.
In sum, even construing the Complaint liberally in a light most favorable to the Plaintiff,
Brand v. Motley, 526 F.3d 921, 924 (6th Cir. 2008), it does not contain allegations reasonably
suggesting he might have a valid federal claim. See, Lillard v. Shelby County Bd. of Educ,, 76
F.3d 716 (6th Cir. 1996)(court not required to accept summary allegations or unwarranted legal

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conclusions in determining whether complaint states a claim for relief).

CONCLUSION
Accordingly, the request to proceed in forma pauperis is granted, and this action is
dismissed under section 1915(e). Further, the Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an appeal from this decision could not be taken in good faith.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
UNITED STATES DISTRICT COURT
Dated: 11/7/12

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