Opinion
CASE NUMBER 11C 5438
08-25-2011
Akinkunmi v. Walmart Store #2816
Name of Assigned Judge
or Magistrate Judge
Sitting Judge if Other
than Assigned Judge
DOCKET ENTRY TEXT Presently before us is Plaintiff Akintunde Akinkunmi's application to proceed in forma pauperis (4) with his complaint against Defendant Walmart Store # 2816. (Dkt. Nos. 1 & 4.) We deny Plaintiff's motion, (4) because his complaint fails to state a claim upon which relief can be granted. We deny Plaintiff's motion without prejudice, however. In the event Plaintiff decides to replead his complaint and refile his in forma pauperis application, we urge him to fill out any and all necessary forms thoroughly, carefully, and legibly. It is so ordered. Plaintiff's motion for appointment of counsel (5) is denied at this time.
[x] [For further details see text below.]
Docketing to mail notices.
STATEMENT
(Reserved for use by the Court)
ORDER
Presently before us is Plaintiff Akintunde Akinkunmi's application to proceed in forma pauperis with his complaint against Defendant Walmart Store # 2816. (Dkt. Nos. 1 & 4.) We deny Plaintiff's motion, because his complaint fails to state a claim upon which relief can be granted.
Ordinarily in evaluating an in forma pauperis application, we determine whether the plaintiff is indigent and then evaluate the sufficiency of the complaint. 28 U.S.C. § 1915(a)(1), (e)(2)(B)(i)-(iii). In this case, however, we will begin with the second half of this inquiry. Plaintiff's complaint is a form labeled "Complaint for Violation of Constitutional Rights" that cites to 42 U.S.C. §§ 1983, 1985 & 1986. The complaint contains no factual allegations, however. All we can discern is that Plaintiff is attempting to sue Walmart Store # 2816, where, as we understand from his in forma pauperis application, he was at some point employed. (Dkt. No. 1 at 1; Dkt. No. 4 at 1.) But absent some allegation that Walmart Store # 2816 or some representative thereof was acting under color of law, Plaintiff has failed to allege the state action that is essential to § 1983 claims. See 42 U.S.C. § 1983 (providing cause of action against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" violates rights "secured by the Constitution and laws" of the United States); Adickes v. S.H. Kress & Co., 398 U.S. 144, 162, 90 S.Ct. 1598, 1612 (1970) ("[T]he legislative history of [42 U.S.C. § 1983] . . . indicates that the provision in question here was intended to encompass only conduct supported by state action.") Because Defendant cannot be liable for the types of claims Plaintiff purports to bring, Plaintiff has failed to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); 28 U.S.C. § 1915(e)(2)(B)(ii). We therefore deny Plaintiff's motion to proceed in forma pauperis.
We deny Plaintiff's motion without prejudice, however. In the event Plaintiff decides to replead his complaint and refile his in forma pauperis application, we urge him to fill out any and all necessary forms thoroughly, carefully, and legibly. Several responses on his in forma pauperis application require further elaboration, such as the beginning and end date of his employment, as well as the amount and frequency of any public assistance payments he receives. (Dkt. No. 4 at questions 2b and 4d.) It is so ordered.