United States District Court, M.D. Florida, Jacksonville Division
RANDY S. LINGELBACH, JR., Plaintiff,
JERROD THOMPSON, et al., Defendants.
ORDER OF DISMISSAL WITHOUT PREJUDICE
J. DAVIS United States District Judge.
an inmate in the Florida penal system, initiated this action
by filing a pro se Civil Rights Complaint Form (Complaint)
(Doc. 1). Plaintiff names Jerrod Thompson, Duane Lopez, and
Walmart as the defendants. Plaintiff also filed a Motion for
Leave to Proceed in forma pauperis (Doc. 2). In the
Complaint, Plaintiff asserts that while at Walmart, he was
“attacked by Jerrod Thompson and Duane Lopez whom work
for Walmart.” Complaint at 5.
Prison Litigation Reform Act requires the Court to dismiss a
case at any time if the Court determines that the action is
frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a
defendant who is immune from suit relief. See 28
U.S.C. § 1915(e)(2)(B). In reviewing a pro se
plaintiff's pleadings, the Court must liberally construe
the plaintiff's allegations. Haines v. Kerner,
404 U.S. 519 (1972); Bindham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011).
respect to whether a complaint “fails to state a claim
on which relief may be granted, ” §
1915(e)(2)(B)(ii) mirrors the language of Federal Rule of
Criminal Procedure 12(b)(6), so courts apply the same
standard in both contexts. Mitchell v. Farcass, 112
F.3d 1483, 1490 (11th Cir. 1997); see also Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action” that amount to “naked
assertions” will not do. Id. (quotation and
citation omitted). Moreover, a complaint must “contain
either direct or inferential allegations respecting all the
materials elements necessary to sustain a recovery under some
viable legal theory.” Roe v. Aware Woman Ctr. For
Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)
(internal quotation and citation omitted).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) the defendant deprived him of a right secured
under the United States Constitution or federal law, and (2)
such deprivation occurred under color of state law.
Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir.
2015); Bingham, 654 F.3d at 1175.
“‘[T]he under-color-of-state-law element of
§ 1983 excludes from its reach merely private conduct,
no matter how discriminatory or wrongful.'”
Focus on the Family v. Pinellas Suncoast Transit
Auth., 344 F.3d 1263, 1277 (11th Cir. 2003) (quoting
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
49-50 (1999)). Thus, at a minimum, to satisfy the
under-color-of-state-law element, a defendant's actions
must be “fairly attributable to the State” which
requires that the defendant is a “person who may fairly
be said to be a state actor.” Lugar v. Edmondson
Oil. Co., 457 U.S. 922, 937 (1982). “Only in rare
circumstances can a private party be viewed as a ‘state
actor' for section 1983 purposes.” Harvey v.
Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). A private
party qualifies as a “state actor” under §
1983 if one of the following three tests is satisfied: (a)
the “state compulsion test, ” wherein the state
has coerced or significantly encouraged the federal
violation; (b) the “public function test, ”
wherein private parties perform a public function that is
traditionally the exclusive prerogative of the state; or (c)
the “nexus/joint action test, ” wherein the state
has insinuated itself into a position of interdependence with
the private party, such that the state and private party are
essentially joint participants in an enterprise. Rayburn
ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir.
2001); see also Nat'l Broad. Co., Inc. v.
Commc'ns Workers of Am., AFL-CIO, 860 F.2d 1022,
1026-27 (11th Cir. 1988).
review of the Complaint, Plaintiff does not allege that the
actions of any of the defendants, who are private parties,
were attributable to the State of Florida. Plaintiff fails to
demonstrate that any of the defendants qualify as a
“state actor, ” and therefore, Plaintiff fails to
state a claim under 42 U.S.C. § 1983.
to the extent Plaintiff asserts state law claims, Plaintiff
fails to demonstrate that the Court has either original
jurisdiction or supplemental jurisdiction to hear this case.
See 28 U.S.C. § 1332 (A district court shall
have original jurisdiction over civil actions whether the
matter in controversy exceeds $75, 000.00 and is between
citizens of different states.); 28 U.S.C. § 1367(a)
(When a district court has original jurisdiction over an
action, it may exercise supplemental jurisdiction over state
law claims related to a federal claim in that action.). Thus,
the Court dismisses this case without prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B). Accordingly, it is ORDERED
case is DISMISSED without prejudice.
Clerk of Court shall enter judgment dismissing this case
without prejudice, terminate any ...