United States District Court, W.D. Michigan, Southern Division
HONORABLE PAUL L. MALONEY JUDGE
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
brings this case pro se and was allowed to proceed
in forma pauperis under 28 U.S.C. § 1915. This
action is subject to judicial screening under 28 U.S.C.
§ 1915(e)(2)(B)(ii), which provides that the court
“shall dismiss” actions brought in form
pauperis “at any time if the court determines that
. . . the action . . . fails to state a claim on which relief
may be granted.” For the reasons stated herein, I
recommend that the complaint be dismissed.
of a complaint for failure to state a claim on which relief
may be granted under § 1915(e)(2) is appropriate
“only if it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his claim that would
entitle him to relief.” Brown v. Bargery, 207
F.3d 863, 867 (6th Cir. 2000). To survive dismissal under
[a] complaint must contain “'either direct or
inferential allegations respecting all the material elements
to sustain a recovery under some viable legal
theory.'” Scheid v. Fanny Farmer Candy Shops,
Inc., 859 F.3d 434, 436 (6th Cir. 1988) (quoting Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106
(7th Cir. 1984)). The court is not required to accept
non-specific factual allegations and inferences or
unwarranted legal conclusions. See Lillard v. Shelby
County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996);
Morgan v. Church's Fried Chicken, 829 F.2d 10,
12 (6th Cir. 1987).
Mitchell v. Cmty. Care Fellowship, 8 Fed.Appx. 512,
513 (6th Cir. 2001).
alleges that he is a resident of Muskegon Heights, Michigan
and he provides a Muskegon Heights address for the defendant,
Ramoz Towing. Plaintiff alleges that in August 2017,
defendant towed his car and that defendant later sold the car
while he was in jail. Plaintiff seeks to recover $50, 000 in
damages from defendant under 42 U.S.C. § 1983.
Court has a duty to read a pro se plaintiff's
complaint indulgently. See Haines v. Kerner, 404
U.S. 519 (1972). “Notwithstanding the entitlement of a
pro se litigant to liberal construction of his
pleadings and filings, the complaint must contain sufficient
factual matter to ‘state a claim to relief that is
plausible on its face.' ” Balcar v. Jefferson
Cty. Dist. Ct., No. 17-5402, 2017 WL 4535934, at *1 (6th
Cir. Sept. 8, 2017) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). Upon a liberal reading of
plaintiff's complaint, the complaint is subject to
dismissal for failure to state a claim upon which relief may
be granted under 28 U.S.C. § 1915(e)(2)(B)(ii).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the federal
Constitution or laws, and he must show that the deprivation
was committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff
has not alleged any facts indicating that defendant is a
state actor. A private entity or private individual acting on
his own cannot deprive a citizen of his constitutional
rights. See Lansing v. City of Memphis, 202 F.3d
821, 828 (6th Cir. 2000) (citing Flagg Brothers Inc. v.
Brooks, 436 U.S. 149 (1978)). Section 1983 does not
create a cause of action against a private actor “
‘no matter how discriminatory or wrongful' the
party's conduct.” Tahfs v. Proctor, 316
F.3d 584, 590 (6th Cir. 2003) (quoting Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)).
Court must also decide whether an appeal of this action would
be in good faith within the meaning of 28 U.S.C. §
1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d
601, 611 (6th Cir. 1997). For the same reasons that I
recommend dismissal of the complaint, I recommend that,
should the Court dismiss the action, it also find that there
is no good-faith basis for an appeal.
foregoing reasons, I recommend that the complaint be
dismissed for failure to state a federal claim under 28
U.S.C. § 1915(e)(2)(B)(ii). I further recommend that the
Court find no good-faith basis for appeal.