Jennings v. Jpay Inc
REPORT AND RECOMMENDATION: 1 Motion for Leave to Proceed in forma pauperis is GRANTED. Magistrate Judge RECOMMENDS DISMISSAL of the Complaint for failure to state a claim upon which relief can be granted. Objections to R&R due by 5/19/2017. Signed by Magistrate Judge Kimberly A. Jolson on 5/5/2017. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified docket entry relationships on 5/5/2017 (ew).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Civil Action 2:17-cv-328
Judge George C. Smith
Magistrate Judge Jolson
REPORT AND RECOMMENDATION
Plaintiff Alphonso Jennings, a pro se prisoner, filed a Motion for Leave to Proceed in
forma pauperis on April 18, 2017. (Doc. 1). Pursuant to 28 U.S.C. § 1915(a), that Motion is
GRANTED. All judicial officers who render services in this action shall do so as if the costs
had been prepaid. However, as explained below, the Court concludes this action cannot proceed.
Because Plaintiff is proceeding in forma pauperis, this Court must conduct an initial
screening pursuant to 28 U.S.C. § 1915. The Court must dismiss the Complaint if it determines
that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (“[T]he allegations of a complaint drafted by
a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers....”);
Thompson v. Kentucky, 812 F.2d 1408, No. 86-5765, 1987 WL 36634, at *1 (6th Cir. 1987)
(“Although pro se complaints are to be construed liberally, they still must set forth a cognizable
federal claim.” (citation omitted)). In order to survive dismissal for failure to state a claim, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 570 (2007)).
Applying those standards here, the Undersigned
RECOMMENDS DISMISSAL. (Doc. 1-2).
In the instant case, Plaintiff seeks to recover damages for an alleged constitutional
violation by JPay Inc. (“JPay”), a Florida company providing services to Plaintiff and other
inmates in the London Correctional Institution. (Id. at 6, PAGEID #: 21). Although not entirely
clear, Plaintiff claims that JPay violated his rights under 42 U.S.C. § 1983 by blocking his access
to certain information, including institutional communications, emails, photos, and music. (Id.).
More specifically, Plaintiff claims that JPay blocked his access to that information because he
refused to agree to its Terms of Usage, which he views as unfair and one-sided. (Id.). Plaintiff
sent a detailed complaint to JPay on February 1, 2017, outlining these claims. (See id. at 10–23,
PAGEID #: 25–38).
The governing statute states, in pertinent part:
Every person who, under color of any statute … of any State … subjects, or
causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws shall be liable to the party injured in an
action at law ….
42 U.S.C. § 1983.
Thus, to bring a successful § 1983 claim for an alleged constitutional
violation, the defendant must have acted “under the color of law.” See id. Stated differently,
“the under-the-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) (citing Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)).
As Plaintiff acknowledges throughout his Complaint, JPay is a private company (see,
e.g., Doc. 1-2 at 3, PAGEID #: 18 (noting “there is no grievance procedure for ‘outsourced’
private companies in the Ohio penal system”); id. at 6, PAGEID #: 21 (stating that he “had to file
a complaint with the private company (JPay Inc.) itself, for any discrepancies”); id. at 14,
PAGEID #: 29 (stating JPay is a “private, for-profit business”)), and Plaintiff does not attempt to
attribute its actions to the state. See, e.g, Federspiel v. Ohio Republican Party State Cent.
Comm., 867 F. Supp. 617, 622 (S.D. Ohio 1994) (discussing criteria to determine if private
action may be attributable to the state). Thus, there is no government involvement or action.
(See generally Doc. 1-2).
Because Plaintiff cannot prove the “under-the-color-of-law”
requirement necessary for a § 1983 action, he cannot state a claim upon which relief may be
granted. See Elam v. Sandusky Register, No. 2:09-cv-181, 2009 WL 1586499, at *1 (S.D. Ohio
June 5, 2009) (dismissing prisoner’s complaint where it “fails to state a claim against Defendants
for deprivation of due process because it does not allege that Defendants acted under color of
law”); Applegarth v. Hughes, No. 2:06-cv-2006, 2006 WL 3491149, at *1–2 (S.D. Ohio Dec. 1,
2006) (recommending dismissal of prisoner’s complaint for failure to state a § 1983 claim based
on private conduct); see also Fayne v. Clipper, No. 1:12 cv 2500, 2013 WL 459895, at *2 (N.D.
Ohio Feb. 6, 2013) (dismissing claim because “[a]lthough [the plaintiff] utilized a complaint
form for a civil rights action filed by a prisoner, he does not identify any constitutional rights
which he believes the policy violates, and none is apparent on the face of the Complaint”).
For the foregoing reasons, the Undersigned RECOMMENDS DISMISSAL of the
Complaint for failure to state a claim upon which relief can be granted. (Doc. 1-2).
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).
A Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: May 5, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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