Howard v. Whitney
MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on January 11, 2018. (sfc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CASE NO. 6:18-cv-00004
REDMOND J. HOWARD,
THEODORE GRESHAM WHITNEY,
JUDGE NORMAN K. MOON
This matter is before the Court on Plaintiff Redmond Howard’s (“Plaintiff”) pro se
Complaint and Motion for Leave to Proceed In Forma Paupris. (Dkt. 1, 2). In his complaint,
Plaintiff seeks equitable relief for an alleged violation under 42 U.S.C. § 1983. For the reasons
stated herein, I hereby grant Plaintiff’s motion and dismiss the complaint pursuant to 28 U.S.C.
§ 1915 for failure to state a claim upon which relief may be granted.
I. LEGAL STANDARD
Under 28 U.S.C. § 1915, district courts must screen initial filings and dismiss a complaint
filed in forma pauperis “at any time if the court determines that . . . the action or appeal . . . is
frivolous or malicious . . . [or] fails to state a claim on which relief may be granted. . . .” 28
U.S.C. § 1915(e)(2)(B)(i)-(ii); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656
(4th Cir. 2006) (noting that § 1915 permits “district courts to independently assess the merits of
in forma pauperis complaints, and ‘to exclude suits that have no arguable basis in law or fact.’ ”)
(quoting Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995)).
Plaintiff alleges in his Complaint that Defendant Theodore Whitney, Director of Liberty
University Commuter and Graduate Student Life slandered him, depriving him of “his
rights/privileges at commuter student life due to false testimony,” in violation of 42 U.S.C.
§ 1983. (Compl. ¶ 6). Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . , 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 in an action at law
42 U.S.C. § 1983. “In cases under section 1983, ‘under color’ of law has consistently been
treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.”
Rendell–Baker v. Kohn, 457 U.S. 830, 838 (1982). The alleged conduct by Defendant Whitney is
not state action under § 1983.
Moreover, the private action by Defendant Whitney cannot be considered state-action,
“under color of law,” within the purview of § 1983. A private actor can be considered a stateactor for purposes of § 1983 in only four instances: (1) when coerced by the state; (2) when the
state has delegated a duty to the private actor; (3) when the private actor is engaged in a
traditional and exclusively public function; or (4) when the state assists the private actor by
enforcing the private actor’s rights. Watts-Means v. Prince George’s Family Crisis Ctr., 7 F.3d
40, 43 (4th Cir. 1993). Defendant does not satisfy any of the exceptions enumerated above.
Defendant is, thus, not a state-actor and Plaintiff has failed to plead a cause of action under
§ 1983. Therefore, Plaintiff has failed to state a claim on which relief can be granted and the
action will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
For these reasons, the motion to proceed in forma pauperis will be granted, and the Clerk
of the Court will be directed to file Plaintiff’s complaint, which will be dismissed without
prejudice. An appropriate order will follow
Entered this 11thday of January, 2018.
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