COLON v. BONILLA et al

Filing 9

MEMORANDUM OPINION. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 10/22/13. 10/25/13 ENTERED AND COPIES MAILED TO PRO SE. (mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JULIO COLON
v.

C.A. NO. 13-4392

JESSICA BONILLA, et al.

MEMORANDUM OPINION AND ORDER
SCHMEHL, J.

October 22, 2013
Plaintiff, a prisoner, has filed a pro se 42 U.S.C. § 1983 civil rights lawsuit against

defendants Jessica Bonilla, Diana Rivera Ortiz, Allstate Abstract, Inc. and John Doe, alleging
that the defendants, who are not prison officials, defrauded plaintiff of his property during his
incarceration. Plaintiff seeks the return of his property as well as monetary relief. The Court
previously denied plaintiff leave to proceed in forma pauperis without prejudice because plaintiff
failed to file a certified copy of his prisoner account statement for the entire six-month period
prior to filing of this action. In the same Order, the Court directed the Clerk to close the case for
statistical purposes. Plaintiff then paid the filing fee and the case was reopened. For the reasons
that follow, the Complaint will be dismissed as legally frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
28 U.S.C. § 1915(e)(2)(B)(ii), covering in forma pauperis proceedings, provides
that:
(2) 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—
(B) the action or appeal—
(ii) fails to state a claim upon which relief can be granted

In order to bring suit under § 1983, the plaintiff must allege in the complaint that a
person acting under color of state law deprived him of his constitutional rights. Revell v. Port
Auth. of N.Y. and N.J., 598 F.3d 128, 134 (3d Cir. 2010). The complaint filed in this case does
not allege or even suggest that any of the defendants acted under color of state law with respect
to plaintiff’s claim. Thus, plaintiff has failed to state a cognizable federal claim under 42 U.S.C.
§ 1983.
Because plaintiff has failed to allege a cognizable federal claim under 42 U.S.C. §
1983, the action is dismissed for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). The dismissal will be without prejudice to plaintiff’s right to pursue this action
in the appropriate state court or, if the parties are citizens of different states and the amount in
controversy is in excess of $75,000.00, exclusive of interest and courts, in federal court under 28
U.S.C. § 1332, which provides for diversity of citizenship jurisdiction.
.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JULIO COLON
v.

C.A. NO. 13-4392

JESSICA BONILLA, et al.

ORDER
AND NOW, this 22nd day of October, 2013, having considered plaintiff’s
complaint, it is hereby ORDERED that the complaint is DISMISSED without prejudice as
legally frivolous pursuant to 28 U.S.C.§ 1915(e)(2)(B)(ii).
It is further ORDERED that all outstanding motions are DENIED as moot.
It is further ORDERED that the Clerk shall mark this case closed for statistical
purposes.
BY THE COURT:

/s/ Jeffrey L. Schmehl_____________________
JEFFREY L. SCHMEHL