REPORT AND RECOMMENDATION

Plaintiff, an Alabama inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

I. Plaintiff's Allegations. (Doc. 1)

Plaintiff identified as Defendants Union Planters Bank ("bank"); Christopher J. Gray, manager of the bank's Highway 90, Mobile branch; Ben Jackson, Assistant Vice President of the bank in Jackson, Mississippi; and Helen Marie Kennedy, Plaintiff's mother. Plaintiff claims that prior to his conviction for a felony, he received $850 monthly in social security benefits and that he is missing from his account at the bank ten months of social security deposits.

Plaintiff alleges that when the Social Security Administration terminated his benefits, he contacted the bank to learn whether the checks for the ten months had been deposited. Plaintiff maintains that the teller would not give him any information because he did not know his account number and advised him to give his girlfriend, Mary Jo Rogers, his power of attorney, which he did. Plaintiff claims that he became aware that he was missing money when Mary Jo Rogers informed him that the last $1,500 in his account "was mailed by a check from Union Planters Bank" and sent to Defendant Kennedy in Helena, Mississippi.

Plaintiff asserts that after he was arrested, Defendant Kennedy sent Plaintiff's sister to collect Plaintiff's belongings, which included Plaintiff's ATM card, from a cousin's house. Plaintiff alleges that Defendant Kennedy has worked as a bank teller and "knows how the bank system operates." Plaintiff avers that Defendant Kennedy embezzled money from his account and "forged" his bank account.

Plaintiff's claims against Defendant Gray and Defendant Jackson, bank employees, are for denying him access to his account and sending the $1,500 to Defendant Kennedy. Plaintiff also alleges that Defendant Gray denied Plaintiff payment "of his account." Plaintiff claims that the bank is responsible for the loss of his money and that the bank's FDIC insurance should replace his missing money. For relief, Plaintiff wants his money returned with interest.

II. Applicable Law.

Because Plaintiff is proceeding in forma pauperis, the Court is reviewing Plaintiff's complaint under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted "only if 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) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

III. Discussion.

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish: "(1) . . . the conduct complained of was committed by a person acting under color of state law; and (2) . . . this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). Because the Defendants are private individuals and do not typically act under color of state law, the Court must determine if in this instance the Defendants acted under color of state law. To determine if a private party acts under color of state law, the United States Supreme Court uses three tests:

(1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. National Broadcasting Co. Inc. v. Communication Workers of America. AFL-CIO, 860 F.2d 1022, 1026 (11th Cir. 1988) (footnote omitted). The public function test limits state action to instances where private actors are performing functions "traditionally the exclusive prerogative of the state." NBC, 860 F.2d at 1026, (citations omitted). The state compulsion test limits state action to instances where the government "has coerced or at least significantly encouraged the action alleged to violate the Constitution." NBC, 860 F.2d at 1026 (citations omitted). The nexus/joint action test applies where "the state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise." NBC, 860 F.2d at 1026-27 (citations omitted).

In the complaint there are no specific allegations that any of the Defendants acted under color of state law. Nor does it appear that these Defendants are typical state actors. Moreover, Plaintiff's allegations do not show that the Defendants acted under color of state law because there are no allegations indicating that the Defendants performed a traditional state function, that they were coerced by the state, or that they were joint participants with the state in their business. Accordingly, since this essential element is absent, the Court concludes that Plaintiff's § 1983 action is due to be dismissed with prejudice as frivolous.

IV. Conclusion.

Based on the foregoing reason, it is recommended that this action be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded) .

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.