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Phillips v. Towing

United States District Court, W.D. Michigan, Southern Division

April 12, 2018

Chauncey Phillips, Plaintiff,
v.
Ramoz Towing, Defendant.

          HONORABLE PAUL L. MALONEY JUDGE

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         Discussion

         Dismissal 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 § 1915(e)(2)(B),

[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).

         Plaintiff 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.

         The 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).

         To 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)).

         The 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.

         Recommended Disposition

         For the 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.

         NOTICE ...


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