De La Rosa, Michael v. Jimenez, Jana

Filing 7

ORDER dismissing #1 Complaint with prejudice for failure to state a claim upon which relief may be granted. The clerk of court is directed to record a strike under 28 U.S.C. 1915(g), enter judgment, and send plaintiff copies of this order and the judgment. Signed by District Judge James D. Peterson on 11/14/2023. (voc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MICHAEL JAMES DE LA ROSA,
Plaintiff,
v.

OPINION and ORDER
23-cv-666-jdp

JANA GRACE JIMENEZ,
Defendant.

Plaintiff Michael James de la Rosa alleges that his former acquaintance, Jana Grace
Jimenez, physically abused him, stole from and defrauded him, interfered with his custodial
rights, and caused him great mental anguish. Because De la Rosa proceeds in forma pauperis,
I must screen the complaint under 28 U.S.C. § 1915(e)(2)(B). I must dismiss any portion of
the complaint that is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks money damages from an immune defendant. I must accept De la Rosa’s
allegations as true and construe them generously, holding the complaint to a less stringent
standard than one a lawyer drafts. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). I will
dismiss the complaint for failure to state a claim and direct the clerk of court to record a strike
under 28 U.S.C. § 1915(g).
To be liable under 42 U.S.C. § 1983, Jimenez must have acted “under color of state
law” to deprive De la Rosa “of some federally guaranteed right.” See Wilson v. Price,
624 F.3d 389, 392 (7th Cir. 2010). Action is taken under color of state law “when it involves
a misuse of power . . . made possible only because the wrongdoer is clothed with the authority
of state law.” See id.

A private citizen may be liable under § 1983 if she conspires with a public employee to
deprive the plaintiff of his constitutional rights. Proffitt v. Ridgway, 279 F.3d 503, 507
(7th Cir. 2002). “A complaint must contain more than mere conclusory allegations of such
a conspiracy; a factual basis for such allegations must be provided.” Bowman v. City of Franklin,
980 F.2d 1104, 1107 (7th Cir. 1992); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556–57 (2007).
De la Rosa’s allegations don’t suggest that Jimenez, his former acquaintance and
apparent mother of his children, acted under color of state law. De la Rosa’s allegations don’t
suggest that Jimenez was a state employee, much less that she took the alleged actions in that
capacity. Nor has De la Rosa alleged that Jimenez conspired with a state employee to violate
his federal rights. The closest allegation is that Jimenez used an attorney to write a fraudulent
divorce decree, but “a divorce lawyer’s efforts on behalf of his client cannot under any
foreseeable set of circumstances be considered state action.” Patel v. Heidelberger, 6 F. App’x
436, 438 (7th Cir. 2001). If De la Rosa is alleging that Jimenez conspired with the police or
prosecutors by accusing him of domestic abuse, this allegation would not make Jimenez a state
actor for § 1983 purposes. See Rogers v. Relitz, No. 22-cv-730-wmc, 2023 WL 2784878, at *3
(W.D. Wis. Apr. 5, 2023) (plaintiff’s allegation that defendants called the police on him two
times, which led to the service of a temporary restraining order and the institution of criminal
charges, failed to suggest that defendants were state actors).
Because De la Rosa’s allegations fail to suggest that Jimenez is a state actor, I will not
allow him to proceed on his § 1983 claims against her. The court of appeals has cautioned
against dismissing a pro se plaintiff’s case without giving him a chance to amend the complaint.
Felton v. City of Chicago, 827 F.3d 632, 636 (7th Cir. 2016). But dismissal in this case is

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appropriate because it’s clear from De la Rosa’s allegations that Jimenez isn’t a state actor
under § 1983. See Bogie v. Rosenberg, 705 F.3d 604, 608 (7th Cir. 2013). De la Rosa would have
to pursue his claims against Jimenez in state court.

ORDER
IT IS ORDERED that:
1. Plaintiff Michael James de la Rosa’s complaint, Dkt. 1, is DISMISSED with
prejudice for failure to state a claim upon which relief may be granted.
2. The clerk of court is directed to record a strike under 28 U.S.C. § 1915(g), enter
judgment, and send plaintiff copies of this order and the judgment.
Entered November 14, 2023.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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