United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST FLORENCE, UNITED STATES MAGISTRATE JUDGE
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.
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.
Standard of Review
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).
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).
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.
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).
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).
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).
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
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) ...