United States District Court, D. South Carolina, Greenville Division
REPORT AND RECOMMENDATION
F. McDonald Greenville, United States Magistrate Judge.
plaintiff, proceeding pro se, brings this civil
action asserting a claim under 42 U.S.C. § 1983. The
plaintiff is a non-prisoner, and he files this action in
forma pauperis under 28 U.S.C. § 1915. The
complaint is subject to summary dismissal.
plaintiff's statement of claim section of the complaint,
he states that “[t]his is about the [d]efendants
violating my civil rights by continuing to manufacture guns
and have me in fear of my life and others. Too many guns are
on the streets” (doc. 1 at 5). He seeks $1, 000, 000 in
damages for “endangering one life” and requests
that the court enjoin the defendants from producing more guns
“until the United States get[s] control under
to the provisions of 28 U.S.C. §636(b)(1)(B), and Local
Civil Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is
authorized to review the complaint for relief and submit
findings and recommendations to the District Court. The
plaintiff filed this action pursuant to 28 U.S.C. §
1915, the in forma pauperis statute. This statute
authorizes the District Court to dismiss a case if it is
satisfied that the action “fails to state a claim on
which relief may be granted, ” is “frivolous or
malicious, ” or “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). As a pro se litigant, the
plaintiff's pleadings are accorded liberal construction
and held to a less stringent standard than formal pleadings
drafted by attorneys. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam). However, even under
this less stringent standard, the pro se pleading
remains subject to summary dismissal. The mandated liberal
construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so, but a district court may not rewrite a petition to
include claims that were never presented, Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or
construct a plaintiff's legal arguments for him,
Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir.
1993), or “conjure up questions never squarely
presented” to the court, Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleading to allege
facts which set forth a claim cognizable in a federal
district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
complaint is filed pursuant to 42 U.S.C. § 1983, which
“‘is not itself a source of substantive rights,
' but merely provides ‘a method for vindicating
federal rights elsewhere conferred.'” Albright
v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker
v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil
action under § 1983 “creates a private right of
action to vindicate violations of ‘rights, privileges,
or immunities secured by the Constitution and laws' of
the United States.” Rehberg v. Paulk, 132
S.Ct. 1497, 1501 (2012). To state a claim under § 1983,
a plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
the defendants are not amenable to suit under § 1983
because they are not persons as required by § 1983. It
is well settled that only “persons” may act under
color of state law, so a defendant in a § 1983 action
must qualify as a “person.” Although suing an
entire department may be a lawsuit against a group of people,
groups of people are not amenable to suit under § 1983.
See Harden v. Green, 27 F. App'x 173, 178 (4th
Cir. 2001) (finding that the medical department of a prison
is not a person pursuant to § 1983); Dalton v. South
Carolina Dep't of Corr., C/A No. 8:09-260-CMC-BHH,
2009 WL 823931, at *2 (D.S.C. March 26, 2009) (dismissing the
medical staff of SCDC and Prison Health Services as
defendants because they were not persons).
the defendants in this case are not amenable to suit under
§ 1983 because they were not acting under color of state
law. “Anyone whose conduct is ‘fairly
attributable to the state' can be sued as a state actor
under § 1983.” Filarsky v. Delia, 132
S.Ct. 1657, 1661 (2012). To determine whether state action is
present, no single factor is determinative and the
“totality of the circumstances” must be
evaluated. See Goldstein v. Chestnut Ridge Volunteer Fire
Co., 218 F.3d 337, 341-43 (4th Cir. 2000). However,
purely private conduct, no matter how wrongful, is not
actionable under 42 U.S.C. § 1983 and the United States
Constitution. See Lugar v. Edmondson Oil Co., 457
U.S. 922, 936 (1983); Mentavlos v. Anderson, 249
F.3d 301, 310 (4th Cir. 2001). In this case, the complaint
alleges no facts to show that these defendants are state
actors amenable to suit under § 1983. Accordingly, the
complaint fails to state a claim upon which relief can be
granted against the defendants.
unclear whether the plaintiff also intends to proceed under
diversity jurisdiction. In the basis for jurisdiction section
of the complaint, the plaintiff checked the box for federal
question and did not check the box for diversity of
citizenship (doc. 1 at 3). However, he completed the section
of the complaint devoted to diversity of citizenship and
stated that “both companies are located in other
states” as a basis for asserting his claim in the
pro se party's answers to Rule 26.01
interrogatories (docs. 1 at 4; 3 at 1). To the extent that he
intends to bring this action pursuant to diversity
jurisdiction, he has met the statutory requirements. See
See Cent. W.Va. Energy Co. v. Mountain State Carbon,
LLC, 636 F.3d 101, 103 (4th Cir. 2011); 28 U.S.C. §
1332(a) (explaining that, with the exception of certain class
actions, the diversity statute requires complete diversity of
parties and an amount in controversy in excess of $75, 000).
The plaintiff alleges that he is domiciled in South Carolina,
that Smith and Wesson Corp. is located in Massachusetts, and
that Sturm Ruger and Company, Inc. is located in Arizona
(doc. 1 at 2); as previously stated, the plaintiff seeks $1,
000, 000 in damages. However, the plaintiff does not allege a
violation of any State law (see doc. 1). Thus, the
plaintiff has failed to state a claim upon which relief can
be granted against the defendants.
it is recommended that the District Court dismiss this action
without prejudice and without issuance and service of
process. See Neitzke v. Williams, 490 U.S. 319,
324-25 (1989); Haines v. Kerner, 404 U.S. 519
(1972). The plaintiff's attention is directed to the
important notice on the next page.
of Right to File Objections to Report ...