Singer v. Levin

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 10 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The plaintiffs 8 motion to proceed in forma pauperis is DENIED AS MOOT. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Should the petitioner choose to appeal, he is ADVISED that he must file a notice of appeal with the Clerk within 30 days after the date of the entry of judgment. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/4/2014. (copy to Pro Se Plaintiff via Cert. Mail, rrr) (nmm) (Additional attachment(s) added on 8/4/2014: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES M. SINGER,
Plaintiff,
v.

Civil Action No. 5:13CV66
(STAMP)

MARTIN LEVIN,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

The pro se1 plaintiff filed his complaint with this Court,
which he titled “Introductory Statement.”

The plaintiff states

that he is bringing his action pursuant to 42 U.S.C. § 1983 for
recent violations related to discrimination by the defendant based
on his mandated report of suspected child abuse.

Further, the

plaintiff asserts that the defendant wrongfully accused him of
committing the child abuse that he reported. The plaintiff asserts
that his First Amendment right to freedom of speech and his
substantive due process rights under the Fourteenth Amendment were
violated.
Pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 636, this
Court

1

referred

the

plaintiff’s

complaint

to

United

States

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

Magistrate Judge James E. Seibert for report and recommendation.
Magistrate Judge Seibert then issued an order to show cause because
the plaintiff had not paid his filing fee or filed an application
to proceed in forma pauperis.

In response, the plaintiff filed an

application to proceed in forma pauperis in addition to filing an
amended complaint restating his allegations and including an email
written from an attorney to the defendant.
After

receiving

the

plaintiff’s

amended

complaint,

the

magistrate judge issued a report and recommendation, recommending
that the plaintiff’s complaint be dismissed for failure to state a
claim upon which relief may be granted and recommending that the
plaintiff’s motion to proceed in forma pauperis be denied as moot.
Specifically, the magistrate judge found that the defendant was not
a state actor nor was he acting under color of state law.

Thus,

the magistrate judge stated that the plaintiff cannot assert a
claim under § 1983 against this defendant.

The magistrate judge

advised the parties that, pursuant to 28 U.S.C. § 636(b)(1)(C), any
party may file written objections to his proposed findings and
recommendations within 14 days after being served a copy of the
report and recommendation.

The plaintiff filed a motion for a

continuance to file a response to the report and recommendation.
This

Court

granted

this

motion

as

framed,

and

provided

the

plaintiff with an additional month to file any objections to the
report and recommendation.

Thereafter, the plaintiff filed a

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document entitled “Clarification in Response to Order Granting
Plaintiff’s Motion for Continuance.”
this

Court

reconsider

the

This document requests that

recommendation

of

dismissal,

and

therefore, this Court will construe the document as objections to
the report and recommendation.
III.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

Because this

Court construes the plaintiff’s filing entitled “Clarification in
Response to Order Granting Plaintiff’s Motion for Continuance”

as

an objection to the report and recommendation, the magistrate
judge’s recommendation will be reviewed de novo.
IV.

Discussion

Pursuant to 28 U.S.C. § 1915(e), this Court is required to
dismiss all civil actions filed without prepayment of a filing fee,
if at any time it is determined that the plaintiff proceeding
without prepayment “fails to state a claim on which relief may be
granted” or if the action seeks recovery from an individual that is
immune.

28

U.S.C.

§

1915(e)(2).

In

determining

whether

a

complaint states a claim upon which relief may be granted, a court
should not scrutinize the pleadings “with such technical nicety
that a meritorious claim should be defeated . . . .”
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
3

Gordon v.

Thus, a pro se

complaint should not be summarily dismissed unless “it appears
‘beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’”

Haines

v. Kerner, 404 U.S. 519, 521 (1972) (quoting Conley v. Gibson, 355
U.S. 41, 45-46 (1957)).
The plaintiff names only one defendant in this action, Martin
Levin. From what this Court can understand from the complaint, the
defendant and plaintiff are both psychologists.

It appears that

the defendant was supervising the plaintiff because the plaintiff
was from out-of-state, and West Virginia requires that out-of-state
psychologists be supervised by a licensed in-state psychologist.
The plaintiff, however, also asserts that the defendant “hired” the
plaintiff, but it is unclear in what capacity the plaintiff was
hired by the defendant.

Other than being a West Virginia licensed

psychologist, the plaintiff does not allege any other connections
that the defendant has with the state.

As to the allegations made

against the defendant, the plaintiff asserts that the defendant
wrongfully accused him of committing certain acts of child abuse
that the plaintiff himself reported based on state law.

Further,

the plaintiff asserts that the defendant fired him based on these
allegations.
As the magistrate judge noted, to state a cause of action
under § 1983, the plaintiff must show (1) that he has been deprived
of a right guaranteed by the Constitution or laws of the United

4

States, and (2) that this violation was committed by a person
acting under color of state law.

West v. Atkins, 487 U.S. 42

(1988). “The traditional definition of acting under color of state
law requires that the defendant in a § 1983 action have exercised
power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.”
Id. at 49.
This Court agrees with the magistrate judge’s finding that the
defendant was in no way acting under the color of state law and,
therefore, the defendant is not subject to a civil rights action
brought under § 1983.

In his amended complaint, the plaintiff

makes no allegations that the defendant is a state actor or that he
was acting for a state actor when he committed the alleged wrongs
against the plaintiff.
Court

is

construing

as

This issue is not remedied by what this
the

plaintiff’s

objections.

In

his

objections, the plaintiff alleges that the government covered up
the alleged child abuse that the plaintiff reported, but this in no
way implicates the defendant in the alleged cover-up, and further,
the alleged cover-up is not the allegation asserted against the
defendant.

Accordingly, this Court must dismiss the plaintiff’s

complaint brought pursuant to § 1983.
V.

Conclusion

For the reasons stated above, this Court finds that the report
and recommendation of the magistrate judge should be, and is

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hereby, AFFIRMED and ADOPTED in its entirety.

Accordingly, the

plaintiff’s motion to proceed in forma pauperis is DENIED AS MOOT.
It is ORDERED that this civil action be DISMISSED and STRICKEN from
the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 30
days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

August 4, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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