United States District Court, S.D. Alabama, Southern Division
COREY L. DIAMOND, Plaintiff,
US EXPRESS TRUCKING COMPANY Defendant.
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
action is before the Court on Plaintiff's pro se
complaint (Doc. 1) and motion to proceed without prepayment
of fees and costs (Doc. 2). This matter has been referred to
the undersigned for pretrial disposition pursuant to 28
U.S.C. § 636(b)(1)(B) and General Local Rule
72(a)(2)(S). Because Diamond has requested leave to proceed
without prepayment of costs and fees (Doc. 2), this Court has
the obligation to undertake a review of his complaint
pursuant to the provisions of 28 U.S.C. § 1915(e). That
statute instructs courts to dismiss any action when it is
determined that an in forma pauperis applicant's
suit is “frivolous or malicious, ” “fails
to state a claim on which relief may be granted, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). Upon consideration of the pleadings, it is
recommended that this action be DISMISSED WITH
PREJUDICE, prior to service of process, because
Plaintiff cannot bring a § 1983 claim against U.S.
Express Trucking Company, see id., and,
alternatively, that this action be DISMISSED
WITHOUT PREJUDICE, to the extent
the Court reads Plaintiff's complaint extremely liberally
to include a Title VII claim.
October 30, 2019, the pro se Plaintiff filed a form
complaint for violation of civil rights against U.S. Express
Trucking Company wherein he seeks damages for the alleged
failure of the Defendant to give him a safety bonus and a
signing bonus, as well as for “probably” paying
him a lower wage than other drivers. (See Doc. 1, at
3 & 5).Plaintiff specifically avers that his claim
against the Defendant is brought in accordance with 42 U.S.C.
§ 1983. (Id. at 3).
that Plaintiff has specifically asserted only a § 1983
claim against U.S. Express Trucking Company, with clear
knowledge that he could have completed a different form
complaint, compare Diamond v. Mobile Police
Department, CA 19-0910-CG-MU, Doc. 1 with Diamond v.
Hose O Weaver and Son, CA 19-0918-CG-MU, Doc. 1, there
is no real need for this Court to liberally construe
Plaintiff's complaint as raising any other claim. In
other words, Plaintiff clearly appears to have known what he
was doing when he filed the instant § 1983 complaint
against U.S. Express Trucking Company, given his litigation
history; therefore, the undersigned is not inclined to read a
different claim into the instant complaint.
U.S.C. § 1983 provides, in relevant measure, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress . . . .
Id. “To establish a claim under 42 U.S.C.
§ 1983, a plaintiff must prove (1) a violation of a
constitutional right, and (2) that the alleged violation was
committed by a person acting under color of state law.”
Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir.
2005), citing West v. Atkins, 487 U.S. 42, 48, 108
S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988).
complaint, Diamond has not alleged the violation of a
constitutional right but even if he had, he has and cannot
maintain a § 1983 action against U.S. Express Trucking
Company because the Defendant is a private company,
a state actor. Compare Crouch, supra, at *4 (finding
plaintiff could not sustain a 1983 action against “Mr.
Gill, Cook Foods, Dr. Nair, and Montgomery Area Mental
Health” because those defendants were not state actors)
with Junie v. Greyhound Bus Company, 2013 WL
5676485, *1 & *3 (S.D. Fla. Oct. 18, 2013) (finding that
Greyhound Bus Company is a private business/company whose
employees do not act under color of state law and, therefore,
it is not a proper defendant in a § 1983 action).
upon the foregoing, it is RECOMMENDED that
this action be DISMISSED WITH PREJUDICE,
prior to service of process, because U.S. Express Trucking
Company is a private company, not a state actor, and,
therefore, it is not a proper defendant to Diamond's
§ 1983 action, see 28 U.S.C. §
1915(e)(2)(B)(i) & (ii). To the extent the Court reads
Plaintiff's complaint extremely liberally to include a
Title VII claim, Plaintiff's complaint still should be
DISMISSED WITHOUT PREJUDICE, prior to
service of process, due to Diamond's failure to allege or
demonstrate that he exhausted his administrative remedies and
because of his failure to allege that the Defendant did not
give him the identified bonuses or pay him the same as other
drivers because of his race, color, religion or national
origin, see 28 U.S.C. § 1915(e)(2)(B)(ii)
(failure to state a claim).
OF RIGHT TO FILE OBJECTIONS
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should
note that under Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1. In order
to be specific, an objection must identify the specific
finding or recommendation to which ...