United States District Court, M.D. Alabama, Northern Division
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. ...