Cheeks v. Non Stop Connections

Filing 9

OPINION. Signed by Judge James P. Jones on 11/16/2017. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

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CALVIN CHEEKS,
Plaintiff,
v.
NON STOP CONNECTIONS,
Defendant.

Case No. 7:17CV00463
OPINION
By: James P. Jones
United States District Judge

Calvin Cheeks, Pro Se Plaintiff.
The plaintiff, Calvin Cheeks, a Virginia inmate proceeding pro se, filed this
his Complaint under the Civil Rights Act, 42 U.S.C. § 1983, alleging that $12.00
was removed from his inmate trust account for photographs he ordered from the
defendant, and that he never received the items.

After review of Cheeks’

submissions, I conclude that his allegations do not provide a factual or legal basis
for any proper claim and will dismiss the action with prejudice as frivolous.
Cheeks is incarcerated at Buckingham Correctional Center in Dillwyn,
Virginia. His Complaint states: “April 07, 2016 am awaiting to receive services
from non stop connections. . . . The funds for: 1 photopak $12.00 was taken off my
inmate trust account and I was looking forward to getting the 1 photopak, but I
never did.” Compl. 2, ECF No. 1. Cheeks submits documentation of his order and

payment to the company, which advertises its money back guarantee. As relief, he
demands one million dollars from the defendant.
The court may dismiss an action if the court is satisfied that the action is
frivolous, malicious, or fails to state a claim upon which relief can be granted.
The plaintiff has no claim under color of state law, as required under 42
U.S.C. § 1983. There is no suggestion that the defendant is a governmental
organization or that its alleged failure to fulfill Cheeks’ order or to refund his
money may be fairly attributed to the state or otherwise qualify it as a state actor
subject to suit under § 1983. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982). In any event, Cheeks’ claims against this defendant also fail because the
defendant’s alleged actions do not implicate any constitutionally protected right.1
For the stated reasons, I will dismiss Cheeks’ Complaint with prejudice as
frivolous.
A separate Order will be entered herewith.
DATED: November 16, 2017
/s/ James P. Jones
United States District Judge

1

This court also has no jurisdiction to address any possible claim under state law.
Cheeks’ Complaint fails to invoke the court’s diversity jurisdiction because it does not
satisfy the threshold amount in controversy requirement. See 28 U.S.C. § 1332(a)
(providing diversity jurisdiction only “where the matter in controversy exceeds the sum
or value of $75,000”). This is no basis for the claim here of one million dollars.
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