Opinion
NO. 3-03-CV-2240
October 20, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge 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 civil rights action brought by Plaintiff Byron Bernard Dupree, an inmate in the TDC J-ID, against the National Association for the Advancement of Colored People ("NAACP") and its president, Kwesi Mfume. On September 30, 2003, plaintiff tendered a pro se complaint to the district clerk and filed an application for leave to proceed in forma pauperis. 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. Upon further review, the court determines that this action is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
II
Plaintiff alleges that defendants have violated his civil rights by refusing to provide him with legal representation to challenge his conviction and resulting incarceration on drug charges. As relief, plaintiff seeks $14,000 in compensatory damages, $60,000 in punitive damages, and an injunction requiring the NAACP to provide him with a lawyer.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109S.Q. 1827, 1831, 104L.Ed.2d338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim maybe deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Plaintiffs claims are without an arguable basis in law. In order to maintain a civil rights 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). Neither the NAACP, a private organization, nor Kwesi Mfume, a private citizen, are state actors. Consequently, plaintiff is not entitled to relief under 42 U.S.C. § 1983.
RECOMMENDATION
Plaintiffs complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).