Opp v. Beggs et al
Filing
6
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
March 21, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KELTON HOWARD OPP,
TDCJ #2081491,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
KRISTINA M. BEGGS, et al.,
Defendants.
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0442
MEMORANDUM OPINION AND ORDER
The plaintiff, Kelton Howard Opp (TDCJ #2081491), has filed a
Complaint
Under
("Complaint")
the
Civil
Rights
42
Act,
u.s.c.
§
(Docket Entry No. 1), seeking damages for the loss of
personal property.
The plaintiff is incarcerated and he has been
granted leave to proceed without prepayment of the filing
Therefore,
1983
the
court
is
required to
scrutinize the
fee.
claims
and
dismiss the Complaint, in whole or in part, if it determines that
the Complaint "is frivolous, malicious, or 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.
the
court
28 U.S.C.
§
1915A(b);
1915 (e) (2) (B).
After considering all of the pleadings,
concludes
this
§
that
case must
be
dismissed
for
the
reasons explained briefly below.
I .
Opp
is
currently
Background
incarcerated by
the
Texas
Department
of
Criminal Justice - Correctional Institutions Division ("TDCJ") at
the Ramsey I Unit in Rosharon. 1
The defendants are Kristina M.
Beggs and Branden J. Opp, both of whom reside in Houston. 2
Opp's Complaint concerns the loss of personal property and
business equipment that reportedly occurred during a foreclosure
proceeding. 3
Opp
explains
that
the
defendants
had
"Power
of
Attorney" over Opp's property, which was lost when Opp's "homestead
was foreclosed upon[.]" 4
Blaming the defendants for the loss of
his personal property and business equipment, Opp seeks a total of
$135,000.00 in compensatory damages under 42 U.S.C.
II.
and (2)
1983. 5
Discussion
To state a claim under 42 U.S.C.
demonstrate:
§
1983,
§
a plaintiff must
(1) a violation of the Constitution or of federal law;
that the violation was committed by someone acting under
color of state law. See Atteberry v. Nocona Gen. Hosp.,
245,
252-53
(5th
second element,
Cir.
2005)
citations
omitted).
The
which requires that the alleged violation occur
under color of state law,
requirement." Lugar v.
(1982).
(internal
430 F.3d
is also known as the "'state action'
Edmondson Oil Co.,
102 S.
Ct.
2744,
2753
In other words, the alleged harm "must be caused by the
1
Complaint, Docket Entry No. 1, p. 3.
2
Id.
3
Id. at 3-4.
4
Id. at 4.
5
Id. at 12.
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exercise of some right or privilege created by the [s]tate or by a
rule of conduct imposed by the [s]tate or by a person for whom the
[s]tate is responsible."
Id.
Opp does not allege facts establishing that the defendants,
who appear to be family members related to Opp, acted under state
law or that their conduct was fairly attributable to the state for
purposes of 42 U.S.C. § 1983. Because it is evident that both of
the defendants are private parties and not state actors, Opp does
not state a claim for which relief can be granted under § 1983 and
his Complaint must be dismissed.
III.
Conclusion and Order
Based on the foregoing,
the court ORDERS that the Complaint
Under the Civil Rights Act, 42 U.S.C. § 1983 (Docket Entry No. 1)
is DISMISSED with prejudice for failure to state a claim.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties.
copy to by regular mail,
(1)
the TDCJ -
The Clerk will also provide a
facsimile transmission,
Office of the General Counsel,
or e-mail to:
P.O.
Box 13084,
Austin, Texas 78711, Fax Number (512) 936-2159; and (2) the Manager
of the Three-Strikes List for the Southern District of Texas.
SIGNED at Houston, Texas, on thislO~~ day o
2017.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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