Ivey v. Cobia

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This 42 U.S.C. §1983 action is pending before the court on a complaint filed by Miles Ivey, an indigent state inmate. In the complaint, Ivey alleges that his sister, Paula Cobia, stole the inheritance he received from his father. Doc. 1 at 5. Ivey requests that Ms. Cobia be required to return the alleged stolen funds to his Prisoner Money on Deposit account. Doc. 1 at 6.

         Upon a thorough review of the complaint, the undersigned concludes that this case is due to be dismissed prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i).^[1]

         II. DISCUSSION

         An essential element of a 42 U.S.C. § 1983 action is that a person acting under color of state law committed the asserted constitutional deprivation. American Manufacturers Mutual Ins. Company v. Sullivan, 526 U.S. 40 (1999); Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993).

To state a [viable] claim for relief in an action brought under § 1983, [a plaintiff] must establish that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. . . . [T]he under-color-of-state-law element of § 1983 excludes from its reach “‘merely private conduct, no matter how discriminatory or wrongful, '” Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)). . . . [Consequently, ] state action requires both an alleged constitutional deprivation “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 that “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).”

American Manufacturers, 526 U.S. at 49-50 (footnote omitted) (emphasis in original).

         It is clear from the complaint that Ivey's sister is a private individual who did not act under color of state law when she allegedly stole his inheritance. As previously stated, “the under-color-of state-law element of § 1983 excludes from its reach merely private conduct, no matter how . . . wrongful.” Blum, 457 at 1002 (internal quotation marks and citation omitted); Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003) (same). Since the action about which Ivey complains was not committed by a person acting under color of state law, the § 1983 claim presented against the defendant lacks an arguable basis in law and is therefore subject to summary dismissal as frivolous pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(i).

         III. CONCLUSION

         Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED with prejudice prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i).

         The plaintiff may file objections to the Recommendation on or before April 11, 2019. The plaintiff must specifically identify the factual findings and legal conclusions in the Recommendation to which each objection is made. Frivolous, conclusive, or general objections will not be considered by the court.

         Failure to file written objections to the Magistrate Judge's findings and recommendations as required by the provisions of 28 U.S.C. § 636(b)(1) shall bar a de novo determination by the District Court of legal and factual issues covered in the Recommendation. The failure to file written objections will also waive the right of the plaintiff to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. 11TH Cir. R. ...