Opinion
5:21-CV-364-D
10-20-2021
MICHAEL W. OWENS, Plaintiff, v. PRESIDENT/CEO MAKO MEDICAL LABS, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), [DE-1], and on Plaintiffs motion for an extension of time to respond to the court's September 16, 2021 deficiency order, [DE-3]. Plaintiff has now responded to the court's deficiency order, and the motion for extension of time is denied as moot. Plaintiffs complaint fails to state a claim and is frivolous. Accordingly, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiffs allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . . .'" Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. DISCUSSION
Plaintiff, an inmate in the custody of the Virginia Department of Corrections, alleges that on August 4, 2021 he was ordered to submit to Covid-19 testing and that Mako Medical Labs processed his test. Compl. [DE-1] at 4. Plaintiff further alleges that Mako Medical Labs "could have secretly installed nanobiological tech inside of him through the testing swab," which secretly vaccinated him. Id. at 4-5. Plaintiff asserts that the vaccine contains the "Mark of the Beast," and thus infringed on his First Amendment right to Freedom of Religion. Id. at 5. Plaintiff asserts a claim under 42 U.S.C. § 1983 and alleges Mako Medical Labs acted "under color of state law." Id. at 4. Plaintiff seeks a declaration that his rights were violated, compensatory damages of $500,000.00, punitive damages of $500,000.00, and costs. Id. at 8-9.
The allegations of Plaintiff's complaint are speculative and lack an arguable basis in fact and, thus, fail to satisfy the pleading standard of Fed.R.Civ.P. 8(a), Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 570.
Plaintiff has also failed to state a claim under § 1983, which imposes liability on anyone who, under the color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. To state a cause of action under § 1983, a plaintiff must allege facts indicating a deprivation of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 49-50 (1988). "The under-color-of-state-law element of § 1983, like the Fourteenth Amendment's state-action requirement, excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Rodgers v. Waste Indus., Inc., No. 4:12-CV-294-FL, 2013 WL 4460265, at *4 (E.D. N.C. Aug. 19, 2013) (quotations omitted), aff'd, 553 Fed.Appx. 332 (4th Cir. 2014). Nonetheless, private action may be found to constitute state action "(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen." Id. (quoting Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993)); see also Mentavlos v. Anderson, 249 F.3d 301, 314 (4th Cir. 2001) (asking whether "there a sufficiently close nexus between the challenged actions of the defendants and the state "such that their actions may be fairly treated as that of the State itself.") (quotations omitted). Plaintiff alleges in a conclusory fashion that Mako Medical Labs acted under the color of state law, but there are no facts alleged from which the court could conclude that Mako Medical Labs is a state actor. Iqbal, 556 U.S. at 678. Therefore, Plaintiff has failed to state a plausible claim under § 1983. Accordingly, it is recommended that Plaintiff's complaint be dismissed as factually frivolous and for failure to state a claim.
III. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until November 3, 2021, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).