Bibbs v. Lloyd

Full title: MELVIN L. BIBBS, Plaintiff, v. STEVEN LLOYD, Landlord, et al., Defendants

Court: United States District Court, N.D. Indiana, Fort Wayne Division

Date published: May 21, 2010

CAUSE NO. 1:10-CV-118 (N.D. Ind. May. 21, 2010)

Opinion

CAUSE NO. 1:10-CV-118.

May 21, 2010

OPINION AND ORDER

RUDY LOZANO, District Judge

This matter is before the Court on Plaintiff Melvin Bibbs's complaint and his petition to proceed in forma pauperis. For the reasons set forth below, pursuant to 28 U.S.C. section 1915(e)(2), the Court DENIES Plaintiff's motion to proceed in forma pauperis and DISMISSES this case.

BACKGROUND

DISCUSSION

28 U.S.C. section 1915in forma pauperis 28 U.S.C. § 1915 Tregenza v. Great American Communications Co.,12 F.3d 717718cert. denied, 511 U.S. 1085

The Plaintiff brings this action pursuant to 42 U.S.C. section 1983, which provides a cause of action to redress the violation of federally secured rights by a person acting under color of state law. Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004). To state a claim under section 1983, a plaintiff must allege violation of rights secured by the Constitution and laws of the United States, and must show that a person acting under color of state law committed the alleged deprivation. West v. Atkins, 487 U.S. 42 (1988).

To state a claim under section 1983, it is essential that the person who committed the alleged wrongful conduct was "acting under color of state law," and if the defendant did not act "under color of state law," the action against him must be dismissed. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). The phrase "acting under color of [state] law" is defined as "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. . . ." Monroe v. Pape, 365 U.S. 167, 184 (1961).

A private corporation, such as Verizon, and a landlord renting a private dwelling are generally not "clothed with the authority of state law" and do not "act under color of state law." The facts presented in this action do not suggest that Verizon or Lloyd acted "under color of state law" in this case, or that Bibb's fellow tenants, the Hassenplugs, acted under color of state law when they improperly used Bibb's cable access. Because the Defendants did not act "under color of state law," Bibbs may not maintain this action against them under section 1983.

CONCLUSION

For the foregoing reasons, the court DENIES Plaintiff's motion for leave to proceed in forma pauperis (DE #2) and pursuant to 28 U.S.C. § 1915(e)(2) DISMISSES this cause of action.