MCKINLEY v. BOOKARD

Filing 5

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 2/9/17. 2/9/17 ENTERED AND COPIES MAILED TO PLAINTIFF AND COPY TO LEGAL.(jaa, ) Modified on 2/9/2017 (jaa, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KEVIN VASHAUN MCKINLEY

CIVIL ACTION

v.

ALAN BOOKARD

NO. 16-6544
MEMORANDUM

MCHUGH, J.

7

FEBRUARY

I

2017

By order dated January 11, 2017, plaintiff's complaint was
dismissed without prejudice for lack of subject matter
jurisdiction because he was attempting to file a diversity case
against the defendant.

Plaintiff has submitted an amended

complaint (Document No. 4) in which he is alleging that this
Court has jurisdiction pursuant to 28 U.S.C.

§

1343(a) (1) (2) and

( 4) .

For the following reasons, plaintiff's amended complaint
will be dismissed as legally frivolous pursuant to 28 U.S.C.
§

1915(e) (2) (B} (i).
Plaintiff alleges that the defendant agreed to pay him

$1,000 to stage a burglary of his house.

He states that he

entered the defendant's home, staged the burglary and removed 9
pounds of marijuana from the defendant's house.

He further

alleges that the defendant filed criminal charges against him and
had him arrested because he refused to return the defendant's
marijuana.
In order to bring suit under 42 U.S.C.

§

1983, plaintiff

must allege that a person acting under color of state law
deprived him of his constitutional rights.

West v. Atkins,

487

U.S. 42 (1988).

Plaintiff does not provide any information in

his complaint that would support a finding that the defendant is
a state actor.
Furthermore, there are no allegations in plaintiff's
complaint that would allow this Court to find that any of the
defendant's actions were motivated by racial or class-based
animus or that there has been an interference with federal
officials or federal court proceedings which is necessary to
bring an action under 42 U.S.C.

§

1985.

Women's Health Clinic, 506 U.S. 263

See Bray v. Alexandria

(1993); Kush v. Rutledge, 460

U.S. 719, 724-725 (1983); Griffin v. Breckenridge, 403 U.S. 88,
102-103 (1971); Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir.
1976).
Plaintiff has advanced an "indisputably meritless legal
theory."

Neitzke v. Williams, 490 U.S. 319, 327 (1989).

Accordingly, dismissal of this complaint as frivolous pursuant to
28 U.S.C.

§

1915(e) (2) (B) (i) is appropriate.