Bohanon v. Newberry et al
ORDER DISMISSING CLAIMS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Chief Judge S. Thomas Anderson on 2/7/18. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
DEMARCUS NEWBERRY AND
FAMILY DOLLAR, LLC,
ORDER DISMISSING CLAIMS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On July 13, 2016, Plaintiff Elmer Bohanon, who is currently an inmate at the Shelby
County Correction Center in Memphis, Tennessee, filed pro se a Complaint pursuant to 18
U.S.C. § 241 and 42 U.S.C. § 1985(3), accompanied by a motion to proceed in forma pauperis.
(ECF Nos. 1 & 2.) On July 15, 2016, the Court granted Bohanon leave to proceed in forma
pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) On August 15, 2016, Bohanon filed an
(ECF No. 6.)
The Clerk shall record the Defendants as Demarcus
Newberry and Family Dollar, LLC (“Family Dollar”).
Bohanon alleges that on October 24, 2015, Newberry accused Bohanon of shoplifting
merchandise from a Family Dollar store. (Compl. at 2-3, ECF No. 1.) Specifically, Newberry
believed that Bohanon had taken certain Memphis Grizzlies shirts. (Id.) According to the police
report attached as exhibit 1 to the Amended Complaint, Newberry was the manager of the
Family Dollar store. (ECF No. 6-1 at 3). Newberry detained Bohanon and reported him to the
police for shoplifting. (Compl. at 2.) Officers of the Memphis Police Department eventually
apprehended Bohanon and placed him under arrest. (Id at 3.) According to Newberry, Bohanon
had attempted to shoplift $90 worth of Memphis Grizzlies shirts from the Family Dollar store.
(Id. at 4, see also Exhibit A, ECF No. 1-1.) Bohanon alleges that Newberry altered the UPC
codes on the items to inflate their value and with the knowledge that Family Dollar does not sell
Memphis Grizzlies apparel. (Id.) In a subsequent statement given on June 10, 2016, Newberry
admitted that Family Dollar does not sell Memphis Grizzlies shirts. (Id. at 5, see also Exhibit C,
ECF No. 1-4.) Bohanon complains that his arrest and incarceration have aggravated pre-existing
health conditions and caused him reputational harm. (Id. at 6.) Bohanon now seeks an award of
compensatory damages, punitive damages, and reasonable attorney’s fees. (Id. at 7.)
On August 15, 2016, Bohanon filed an Amended Complaint (ECF No. 6). Although the
amended pleading does not contain any new allegations, Bohanon has included with the
Amended Complaint new exhibits and added a claim under 42 U.S.C. § 1983. (ECF No. 6.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief may be
(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the Complaint in this case states a claim on which relief may be
granted, the Court applies the pleadings standards under Federal Rule of Civil Procedure
12(b)(6) announced in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009) and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).
The Court accepts the Complaint’s “well-pleaded” factual allegations as true and then determines
whether the allegations “plausibly suggest an entitlement to relief.” Williams v. Curtin, 631 F.3d
380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations “are not
entitled to the assumption of truth,” and legal conclusions “must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Ultimately, a complaint need only contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Rule 8(a)(2) nevertheless requires factual allegations to make a “showing, rather than a
blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.
“Pro se complaints are to be held ‘to less stringent standards than formal pleadings
drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383
(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Even so, pro se litigants and
prisoners are not exempt from the pleading requirements of the Federal Rules of Civil Procedure.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). District courts are therefore not required “to
ferret out the strongest cause of action on behalf of pro se litigants.” Young Bok Song v. Gipson,
423 F. App’x 506, 510 (6th Cir. 2011). In the final analysis, a court “cannot create a claim
which [a plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608,
612-13 (6th Cir. 2011).
The Court holds that Bohanon’s Complaint and Amended Complaint fail to state any
plausible claim for relief. The Court analyzes each of Bohanon’s claims in turn.
I. 18 U.S.C. § 241
First, Bohanon’s Complaint and Amended Complaint plead a cause of action pursuant to
18 U.S.C. § 241. However, 18 U.S.C. § 241 is a federal criminal statute that makes conspiracy a
crime against the United States. It is well settled that section 241 does not confer a private right
of action on citizens to bring a federal criminal charge or a civil claim for damages. United
States v. Oguaju, 76 F. App’x 579, 581 (6th Cir. 2003) (no private right to initiate criminal
prosecution under § 241); Kafele v. Frank & Wooldrige Co., 108 F. App’x 307 (6th Cir. 2004)
(no private right to seek civil damages under § 241); see also Linda R. S. v. Richard D., 410 U.S.
614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.”). Whatever Bohanon’s theory of the case may be, Bohanon simply
has no right to assert a claim under the United States Criminal Code and section 241. Therefore,
Bohanon’s conspiracy claim under 18 U.S.C. § 241 must be DISMISSED.
II. 42 U.S.C. § 1985(3)
Bohanon next alleges a cause of action under 42 U.S.C. § 1985(3), which prohibits any
conspiracy “for the purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws or of equal privileges and immunities under the laws.”
In order to state a claim under § 1985, a plaintiff must allege each of the following elements:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.
United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825,
828–29 (1983); see also Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003). An essential
element of § 1985(3) is “some class-based discriminatory animus behind the conspirators’
action.” Ctr. for Bio–Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir.
2007). Bohanon’s Complaint alleges none of these elements. The Complaint contains no facts
to show that Newberry or Family Dollar conspired against Bohanon or did so with
discriminatory purpose to deprive Bohanon of equal protection of the laws. Therefore, the
Bohanon’s claim under section 1985(3) must be DISMISSED.
III. 42 U.S.C. § 1983
Finally, Bohanon’s Amended Complaint mentions 42 U.S.C. § 1983.
provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, 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 . . . .
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) a deprivation
of rights secured by the “Constitution and laws” of the United States (2) committed by a
defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
The Court holds that Bohanon has failed to state a section 1983 claim against Newberry
or Family Dollar. An essential element of the claim is state action, and neither Newberry nor
Family Dollar is a state actor for purposes of section 1983. Generally, one who acts “under color
of state law” is a government official or other person employed in state or local government. In
some cases, a private party may act under color of state law if the private party “acted together
with or . . . obtained significant aid from state officials” and did so to such a degree that its
actions may properly be characterized as “state action.” Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982). In other cases, a private party may be considered a state actor if he or she
exercises powers traditionally reserved to the state. Jackson v. Metro. Edison Co., 419 U.S. 345,
352 (1974). But in this case there are no allegations in the pleadings to suggest that Newberry or
Family Dollar engaged in “state action.” At best, Bohanon alleges that Newberry was a witness
to his alleged shoplifting and made a false accusation against Bohanon. “Providing information
to the police, responding to questions about a crime, and offering witness testimony at a criminal
trial does not expose a private individual to liability for actions taken ‘under color of law’ even if
the information provided is false.” Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir.
The Court concludes then that Bohanon has failed to state a section 1983 claim.
Therefore, the Complaint’s section 1983 claim is DISMISSED.
IV. Leave to Amend
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013). But in this case, the Court concludes that leave to amend is not warranted.
Bohannon has no private right of action under 18 U.S.C. § 241. And Bohanon has failed to plead
essential elements of his claims under 42 U.S.C. § 1985(3) and § 1983. What is more, Bohanon
has already amended his pleadings once. Under the circumstances the Court has no reason to
find that Bohanon could cure the defects in his claims by filing yet another amended pleading.
The Court DISMISSES Bohanon’s Complaint for failure to state a claim on which relief
can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Leave to amend is
DENIED because the deficiencies in Bohanon’s Complaint and Amended Complaint cannot be
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Bohanon in this case would be taken in good faith. The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in
good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. It
would be inconsistent for a district court to determine that a complaint should be dismissed prior
to service on a defendant but has sufficient merit to support an appeal in forma pauperis. See
Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead
the Court to dismiss this case for failure to state a claim also compel the conclusion that an
appeal would not be taken in good faith. Therefore, it is CERTIFIED, pursuant to 28 U.S.C.
§1915(a)(3), that any appeal in this matter by Bohanon would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Bohanon
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good
faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the installment
procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th
Cir. 1997), partially overruled on other grounds by LaFountain, 716 F.3d at 951. McGore sets
out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b).
Bohanon is instructed that if he wishes to take advantage of the installment procedures for
paying the appellate filing fee, he must comply with the procedures set out in McGore and
§ 1915(a)(2) by filing an updated in forma pauperis affidavit and a current, certified copy of his
inmate trust account for the six months immediately preceding the filing of the notice of appeal.
For purposes of 28 U.S.C. § 1915(g), this is the first dismissal of one of Bohanon’s cases
as frivolous or for failure to state a claim. This “strike” shall take effect when judgment is
entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
February 7, 2018.
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