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Bellamy v. Finn McCool's Bar

United States District Court, D. South Carolina

August 3, 2018

Albert Bellamy, Plaintiff,
v.
Finn McCool's Bar; Captain Smoke; Manager Robbie, and Crystal, Defendants.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST FLORENCE, UNITED STATES MAGISTRATE JUDGE

         This is a civil action filed by a pro se litigant proceeding in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.

         I. Factual Background

         Albert Bellamy (“Plaintiff”) is a pro se litigant. He submitted a Complaint on June 14, 2018, indicating that his claims for damages arising from allegedly discriminatory activity at a bar/restaurant in Horry County, South Carolina were filed pursuant to 42 U.S.C. 1981, ECF No. 1. at 2. The court conducted the required initial review of this pro se pleading, pointed out certain deficiencies in the pleading, and provided him with the opportunity to file an amended complaint to cure the deficiencies. ECF No. 6. Within the time permitted under the initial Order, Plaintiff filed an Amended Complaint containing virtually identical factual allegations as were in the original Complaint, but indicating that his claims were filed pursuant to 42 U.S.C. § 1983 and the Bivens Doctrine. ECF No. 11 at 3. Plaintiff alleges that he was subjected to humiliating comments from a server about the color of his skin and responsive laughter from a manager at Defendant Finn McCool's Bar. He alleges that he has begun therapy to address his reaction to the comments and behavior. ECF No. 11 at 4-5. Plaintiff attaches to his Amended Complaint statements from a witness to the alleged incident at Finn McCool's and from a Social Worker who has been talking with Plaintiff about his feelings of being a discriminated against because of his skin color. ECF Nos. 11-1, 11-2. Plaintiff seeks to recover $500, 000.00 in damages. Id. at 6.

         II. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915. The review has been conducted in light of the following precedents: Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).

         The Amended Complaint in this case was filed under 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted” or is “frivolous or malicious.” 28 U.S.C. § 1915(e)(2)(B)(i), (ii). Hence, under 28 U.S.C. § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).

         This court is required to liberally construe pro se pleadings, Estelle v. Gamble, 429 U.S. at 97, holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 5 (1980). The mandated liberal construction afforded 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 pleading to “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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). Even under this less stringent standard, however, the pro se Amended Complaint under review in this case is subject to summary dismissal.

         III. Discussion

         To state a cause of action under 42 U.S.C. § 1983, a plaintiff must allege that: (1) the defendants deprived him or her of a federal right, and (2) did so under color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In order to state a claim under the Bivens Doctrine, the plaintiff must allege that the defendants acted under color of federal law. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983: federal officials cannot be sued under 42 U.S.C. § 1983 because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988).

         Because the United States Constitution regulates only the Government, not private parties in most circumstances, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes “state action.” See Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). To qualify as state action, the conduct in question “must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, ” and “the party charged with the [conduct] must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 457 U.S. 922, 937 (1982); see United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen Helpers of Am., AFL-CIO, 941 F.2d 1292 (2d Cir. 1991). Purely private conduct such as that alleged in this case-no matter how wrongful, injurious, fraudulent, or discriminatory-is not actionable under 42 U.S.C. § 1983 or under the Fourteenth Amendment, the two most common provisions under which persons come into federal court to claim that others have violated their constitutional rights. See Lugar, 457 U.S. at 936 (1982); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721 (1961).

         Whether a private individual's action or corporation's action rises to the level of state action necessarily depends on the relationship between the activity and the state. The inquiry involves “whether there is a sufficiently close nexus between the State and the challenged action . . . so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974). In Blum v. Yaretsky, 457 U.S. 991, 1004 (1982), the Supreme Court held that a state is responsible for private action only when it has exercised “coercive power” or has provided “significant encouragement” in the implementation of the action. It is also well settled that “a private person does not act under color of state law simply because he invokes state authority, ” Brummett v. Camble, 946 F.2d 1178, 1184 (5th Cir. 1991), such as by reporting a crime or making statements about suspected criminal activity to police. See, e.g., Bailey v. Harleysville Nat'l Bank & Trust, 188 Fed.Appx. 66, 68 (3d Cir. 2006) (“However, in the absence of a conspiracy with the police to violate constitutional rights, a business's summons of a police officer to deal with a possible disturbance, does not make it a state actor.”); Palmerini v. Burgos, No. 10-cv-210 (FLW), 2011 WL 3625104, at *6 (D.N.J. Aug. 15, 2011); Warner v. Sweeney, No. 05-cv-2871 (JBS), 2005 WL 2257925, at *3 (D.N.J. Sept. 12, 2005).

         All Defendants in this case are private citizens, not law enforcement officials or state or federal employees or officials. Plaintiff's Amended Complaint does not contain any allegations of any particular “nexus” or unusually close relationship between any of the Defendants and law enforcement or other government officials. In fact, there are no allegations of any state or federal involvement in the alleged incident. Also, none of the alleged activities of Defendants are such as would make their actions “‘fairly attributable' to the state.” Montano v. Hedgepeth, 120 F.3d 844, 848-849 (8th Cir. 1997) (quoting Lugar, 457 U.S. at 937). Thus, Plaintiff's Amended Complaint fails to state plausible claims under either § 1983 or the Bivens Doctrine. Because these are the only two bases for jurisdiction alleged in the Amended Complaint and because Plaintiff cannot correct the deficiency of lack of state or federal action through amendment, summary dismissal is recommended.

         Plaintiff's Amended Complaint eliminated the reference to 42 U.S.C. § 1981 that had been included in his original Complaint. See ECF No. 1 at 2. Nonetheless, out of an abundance of caution and under the liberal construction of pro se pleadings rule, the undersigned will address his allegations as if they were made in an attempt to state a claim under that statute. To state a plausible § 1981 accommodations claims, a plaintiff must allege facts showing that a defendant engaged in purposeful discrimination. See Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391(1982). Purposeful discrimination may be proved by direct or circumstantial evidence. When a plaintiff seeks to prove his or her § 1981 action by direct evidence, he must establish a prima facie case by showing that (1) he is a member of a racial minority, (2) the defendant intended to discriminate against him on the basis of race, and (3) the discrimination concerned a privilege protected under § 1981. Johnson v. Toys “R” US-Delaware, Inc., 95 Fed.Appx. 1, 6 (4th Cir. 2004) (citations omitted). “‘[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor” constitute direct evidence. Long v. Aronov Realty Mgmt., Inc., 645 F.Supp.2d 1008, 1017 (M.D. Ala. 2009) ...


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