Maxberry v. Progressive Insurance Corporation

Filing 5

Memorandum Opinion and Order signed by Judge James S. Gwin on 3/21/13 granting plaintiff's motion to proceed in forma pauperis and setting forth the reasons for dismissal of this case under 28 United States Code Section 1915(e). (Related Docs. 1 , 2 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

DENNIS LEE MAXBERRY,

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Plaintiff,
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v.
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PROGRESSIVE INSURANCE CORPORATION, )
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Defendant.
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CASE NO. 1:13 CV 398
JUDGE JAMES S. GWIN
MEMORANDUM OF OPINION
AND ORDER

On February 25, 2013, plaintiff pro se Dennis Lee Maxberry filed this in forma pauperis
action under 42 U.S.C. § 1983 against Progressive Insurance Corporation (“Progressive”). While
the complaint is unclear, Mr. Maxberry appears to allege he was involved in an automobile accident
in Milwaukee, Wisconsin on January 17, 2013. He asserts Progressive violated his constitutional
rights by defaming him. He also makes a generalized claim of violation of “rights that may be
protected by the laws of Wisconsin and Ohio, such as false credit testimony, mayhem on property,
defamation, false incrimination, malicious prosecution, conspiracy, and/or any Consumer laws with
other claims that may be supported by the allegations of this complaint.” Complaint, p. 4. For the
reasons stated below, this case is dismissed.
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.
To establish a prima facie case under 42 U.S.C. § 1983, Mr. Maxberry must assert that a
person acting under color of state law deprived him of rights, privileges, or immunities secured by
the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981).
Generally to be considered to have acted “under color of state law,” a defendant must be a state or
local government entity, official or employee. Progressive is a private corporation, not a public
entity. A plaintiff cannot assert a claim under § 1983 against a private party based on private conduct
“no matter how discriminatory or wrongful” the party's conduct may have been. Tahfs v. Proctor,
316 F.3d 584 (6th Cir.2003). A private party can only be liable under § 1983 if its actions may be
“fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). There are no
allegations of such actions on the part of Progressive.
Thus, even construing the complaint liberally in a light most favorable to the plaintiff, Brand

1

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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v. Motley, 526 F.3d 921, 924 (6th Cir. 2008), it does not contain allegations reasonably suggesting
he might have a valid against Progressive under § 1983. Further, there are no facts set forth that
could, under the above Twombly/Iqbal standard, support a claim under any of the other legal theories
Mr. Maxberry identifies. 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 conclusions in
determining whether complaint states a claim for relief).
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.

Dated: March 21, 2013

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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