United States District Court, N.D. Florida, Pensacola Division
ORDER AND REPORT AND RECOMMENDATION
THAI CANNON UNITED STATES MAGISTRATE JUDGE.
proceeding pro se, initiated this action by filing a
civil rights complaint under 42 U.S.C. § 1983 (ECF Doc.
1) and motion to proceed in forma pauperis
(ECF Doc. 2). The Court finds that Plaintiff's motion to
proceed in forma pauperis should be granted
under 28 U.S.C. § 1915. However, for the reasons set
forth below, the undersigned recommends that Plaintiff's
case be dismissed for failure to state a claim for
relief. The named Defendants are not state actors
and, therefore, relief cannot be sought against them under
complaint names two (2) Defendants: Chaplain John Brown
Findlay and the Waterfront Rescue Mission
(“Waterfront”). ECF Doc. 1 at 3-4. The crux of
Plaintiff's complaint is that he was issued a trespass
warning by Defendant Findlay and told not to return to
Waterfront, the shelter at which he had been staying.
Id. at 7. As relief, he seeks monetary damages and
injunctive relief. Id. at 9. The complaint sets
forth the following factual allegations, the truth of which
are accepted for purposes of this order and report and
October 4, 2019, a program worker at Waterfront told
Plaintiff “we are not allowed to have plastic, see
throw [sic] bags in the morring [sic] times. Nor are we
allowed to bring in a cup.” Id. at 5. After
speaking with another employee, the program worker “ran
to tell [Defendant Findlay].” Plaintiff and the other
employee “explained what was going on.”
Id. at 6. After everything was cleared up, the
program worker “staired [sic] at [Plaintiff]
walk” and “steal [sic] wanted to talk.”
Id. Plaintiff said, “I do not care if you want
to fight. Just stop talking to me.” Id.
point, Defendant Findlay “ran out his office [and] said
‘that is it. You're out of here.'”
Id. Plaintiff asked Defendant Findlay what he did
wrong, and Defendant Findlay said, “You threatened
him.” Id. Plaintiff responded, “No I did
not” and repeated what he had said to the program
worker. Id. Defendant Findlay said, “I
don't care, get out.” Id. Plaintiff asked
if he could come back that night, and Defendant Findlay said,
“Yes if you learn how to act.” Id. As he
was walking out the door, Plaintiff said, “[T]his is
bull shit” and Defendant Findlay said, “[T]hat
[sic] it don't come back tonight.” Id.
Plaintiff asked Defendant Findlay why he could not come back
that night, and Defendant Findlay said, “[B]ecause your
[sic] cursing.” Id. at 7.
then left the Waterfront property and called the police to
file a complaint. Id. The officer that arrived,
“Mrs or Mr. P Kamali[, ]” refused to let
Plaintiff file a complaint. Id. Instead, “[h]e
responded without any body camera, lack of security”
and went to speak to Defendant Findlay. Id. The
officer asked Defendant Findlay if he wanted to issue
Plaintiff a trespass warning, and Defendant Findlay said
“yes” and did so. Id.
result of his trespass warning, Plaintiff alleges he is now
being deprived a myriad of benefits Waterfront offers,
including but not limited to, “soap, toothpaste, blank
[sic], sheets, towel, wash rag, clean [and] safe place to
sleep, air condition [sic], clean air, mailing address, 3
meal a day, place to wash [his] body, hot showers, safe place
to store [his] belongings, towlet [sic] [and] sink wash my
hands [and] brush my teeth… computer usage,
phone… [and] assistance to other problem that [he]
may… have[, ]” such as medical care and
spiritual assistance. Id. at 7-8.
on the foregoing, Plaintiff alleges Defendants violated his
First and Fourteenth Amendment rights. Id. at 9. As
relief, Defendant seeks, among other things, at least $2,
200, 000 in damages, permission to return to Waterfront, and
Defendant Findlay's termination of employment.
Plaintiff is proceeding in forma pauperis, the Court
must dismiss his complaint if it determines it is “(i)
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). The Court must read Plaintiff's
pro se allegations in a liberal fashion. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Dismissals for failure to state a claim are governed by the
same standard as Federal Rule of Civil Procedure 12(b)(6).
See Mitchell v. Farcass, 112 F.3d 1483, 1485
(11th Cir. 1997).
survive dismissal, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its fact.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To state a plausible
claim for relief, plaintiffs must go beyond merely pleading
the sheer possibility of unlawful activity by a defendant;
plaintiffs must offer factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id.
under 42 U.S.C. § 1983 requires Plaintiff to show,
inter alia, that the alleged misconduct was
committed by a person acting under color of state law.
Parratt v. Taylor, 451 U.S. 527, 535 (1981),
overruled on other grounds; Daniel v. Williams, 474
U.S. 327 (1986); Griffin v. City of Opa-Locka, 261
F.3d 1295, 1303 (11th Cir. 2001). Private parties
may be considered state actors acting under color of state
law only if one of the following three tests is met:
“(1) the State has coerced or at least significantly
encouraged the action alleged to violate the Constitution
(‘State compulsion test'); (2) the private parties
performed a public function that was traditionally the
exclusive prerogative of the State (‘public function
test); or (3) the State had so far insinuated itself into a
position of interdependence with the [private ...