Opinion
No. 3-04-CV-1273-M.
August 16, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge for initial screening pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se civil action brought by Plaintiff Isaac Edward Allen against Defendants Bob Fisher ("Fisher"), Frozen Food Express, Inc. ("FFEI"), and US Investigation Services ("USIS"). On June 10, 2004, plaintiff filed an application to proceed in forma pauperis and tendered a complaint to the district clerk. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to obtain additional information about the factual basis of this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers with the district clerk on July 21, 2004. The court now determines that this case should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
In his complaint, plaintiff names "Consumer Consulting Department" as a defendant. However, other documents submitted by plaintiff reveal that the correct name of this entity is US Investigation Services.
II.
Plaintiff worked as a long-haul truck driver for FFEI from September 2002 until August 2003 when his supervisor, Bob Fisher, summarily terminated his employment. Although plaintiff requested a hearing to challenge his termination, no hearing was provided. Plaintiff subsequently learned that Fisher and FFEI had given false information to USIS, a private firm specializing in background checks and investigative services for clients in the trucking and transportation industry, that plaintiff had lied on his employment application. As a result, plaintiff has been unable to find suitable employment as a truck driver. By this suit, plaintiff seeks $15 million in compensatory and punitive damages for the violation of his civil rights.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). A complaint fails to state a claim "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
B.
Plaintiff sues defendants for civil rights violations under 42 U.S.C. §§ 1983 and 1985. In order to maintain a cause of action under 42 U.S.C. § 1983, plaintiff must show that he has been deprived of a federally protected right by a person acting "under color of state law." 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). "[T]he under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'" American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999), quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982). A private citizen may be liable under section 1983 only when the challenged conduct is "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); see also Bass v. Parkwood Hospital, 180 F.3d 234, 241 (5th Cir. 1999).Courts employ various tests to determine whether a private party has acted under color of state law. See Richard v. Hoechst Celanese Chemical Group, Inc., 355 F.3d 345, 352 (5th Cir. 2003), citing Bass, 180 F.3d at 241-43. Under the public function test, a private entity acts under color of state law when the entity performs a function which is "exclusively reserved to the state." Id., quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-58, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978). The state compulsion or coercion test imposes liability "for a private decision only when [the state] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Id., quoting Blum, 102 S.Ct. at 2786. The nexus or state action test finds state action where the state has "so far insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise." Id., quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-58, 95 S.Ct. 449, 457, 42 L.Ed.2d 477 (1974).
In his interrogatory answers, plaintiff generally alleges that defendants have a "symbiotic relationship" with the state because they perform a public service and finance or pay for public work. ( See Spears Quest. #1). To the extent plaintiff relies on the public function test to establish liability against defendants under section 1983, he has not shown that the any of the actions taken with respect to his termination and providing false information to prospective employers involve functions "exclusively reserved to the state." Id. Nor has plaintiff established that defendants are state actors under the state compulsion or nexus tests. Consequently, the court is unable to conclude that the conduct of the defendants is "fairly attributable to the State." See Lugar, 102 S.Ct. at 2753.
C.
Plaintiff also asserts a claim under 42 U.S.C. § 1985. Section 1985 provides a cause of action to any person injured as a result of a private conspiracy to interfere with certain civil rights. See Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987). In order to prove a private conspiracy, a plaintiff must show class-based discriminatory animus and interference with a right that is protected against private as well as official encroachment. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268, 113 S.Ct. 753, 758, 122 L.Ed.2d 34 (1993). Plaintiff alleges that defendants violated his right to due process by failing to provide him with an opportunity to contest his termination and by disseminating false information about him to prospective employers. Assuming arguendo that plaintiff has alleged interference with a right of constitutional dimension, he has not shown class-based discriminatory animus on the part of defendants. As a result, this claim fails as a matter of law.
The statute also creates a cause of action for: (1) a conspiracy to prevent a public official from performing his duty; and (2) a conspiracy to obstruct justice or intimidate a party, witness, or juror. Holdiness, 808 F.2d at 424. These types of conspiracies are not implicated by plaintiff's complaint.
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).