Bailey v. McCartney et al

Filing 6

MEMORANDUM re Complaint 1 filed by Tanisha Bailey (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 10/21/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TANISHA BAILEY,
Plaintiff,
v.
DENISE McCARTNEY and
OFFICER BROOKS
Defendant.

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Civil No. 1:16-cv-2063

Judge Sylvia H. Rambo

MEMORANDUM
On October 13, 2016, Plaintiff Tanisha Bailey filed a civil rights suit
pursuant to 42 U.S.C. §1983 against Denise McCartney and Officer Brooks of the
Lower Paxton Police Department. (Doc. 1.) Along with the complaint is a motion
for leave to proceed in forma pauperis.
I.

Background
On February 20, 2016, a fire occurred at Bailey’s residence, which was

investigated by Officer Brooks. It appears that Bailey was tried for arson in the
Court of Common Pleas of Dauphin County. In the complaint, Bailey alleges that
McCartney, a neighbor at the time of the fire, gave false information to Officer
Brooks and at Plaintiff’s trial concerning the fire. The outcome of the trial is not
provided in the complaint. The complaint does set forth, however, that Plaintiff
was incarcerated from February 20, 2016 thru August 11, 2016. (Id. at ¶ V(1).) For
this, Plaintiff is requesting compensation for defamation of character.

II.

Discussion
Title 28 U.S.C. § 1915 imposes obligations on prisoners who file civil

actions in federal court and wish to proceed in forma pauperis. Section 1915(e)(2)
provides:
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 (A) the allegation of poverty is untrue;
or (B) the action or appeal (i) is frivolous or malicious; (ii) fails
to state a claim upon which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.
28 U.S.C. § 1915(e)(2).
When considering a complaint accompanied by a motion to proceed in
forma pauperis, a district court may rule that process should not be issued if the
complaint is malicious, presents an indisputably meritless legal theory, or is
predicated on clearly baseless factual allegations. Neitzke v. Williams, 490 U.S.
319, 327-28 (1998); Wilson v. Rackmill, 878 F.2d 772, 774 (3d. Cir. 1989).
Indisputably meritless legal theories are those “in which either it is readily
apparent that the plaintiff’s complaint lacks an arguable basis in law or that
defendants are clearly entitled to immunity from suit . . . .” Roman v. Jeffes, 904
F.2d 192, 194 (3d Cir. 1990).
This court will also review the complaint pursuant to 28 U.S.C. § 1915A,
which provides:
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(a) Screening – The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion
of the complaint, if the complaint –
(1)

is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or

(2)

seeks monetary relief from a defendant who is
immune from such relief.

28 U.S.C. 1915A.
As noted above, Bailey’s cause of action is brought pursuant to 42 U.S.C.
§1983. An action will only lie under this statute where a state official, acting under
color of state law, violates a constitutional protection. Defendant McCarthy is a
secretary at the Dauphin County Courthouse who, as a private citizen, gave a
statement as a witness to a fire at Plaintiff’s house. She took no action as a state
official acting under color of state law. Therefore, Bailey has not stated a claim
against McCarthy based on federal law.
As to Officer Brooks, the complaint does not state what constitutional
right was violated by Brooks in bringing a criminal action against Plaintiff as a
result of the fire at her house. The cause of action cited is defamation. The
Supreme Court has held that defamation alone does not rise to the level of a
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constitutional violation. Rather, defamation is only actionable under § 1983 if it
occurs in the course of or is accompanied by a change or extinguishment of a right
or status guaranteed by state law or the constitution. Paul v. Davis, 424 U.S. 693,
701-12 (1976). Baily has not alleged a due process violation,1 a loss of liberty
interest, a loss of future employment, or a loss of a property interest. Rather, Bailey
alleges that she is undergoing emotional distress. (Doc. 1, ¶ V.) This action lies in a
state tort law claim and is not actionable under § 1983.
III.

Conclusion
Bailey has failed to state a cause of action under federal law as to both

defendants. This action will be dismissed for lack of jurisdiction in this court.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: October 21, 2016

1

Bailey is currently in jail and presumably was convicted, and she does not claim that she has
been exonerated on appeal.
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