Opinion
CIV-20-328-J
05-08-2020
DEMARCO D. BLEDSOE, Plaintiff, v. MARK SCHLACHTENHAUFEN, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B), the undersigned finds Plaintiff's action should be dismissed for failure to state a claim upon which relief can be granted.
I. Background Information
Plaintiff is a state prisoner incarcerated at Davis Correctional Facility located in Holdenville, Oklahoma. Doc. No. 1 ("Comp."). He brings this action against Defendant Mark Schlachtenhaufen, a journalist for The Edmond Sun. Id. at 4, 6. Defendant is identified as the author of an article published online by The Edmond Sun on September 24, 2014, entitled, "Jury Returns Mixed Verdict in Jail Beating Case," which Plaintiff contends contained false information about him. Id. at 6-7; Doc. No. 1-1.
Although Plaintiff claims the article resulted in his losing an opportunity to play professional football in the National Football League because of its alleged zero-tolerance policy regarding violence against women, he implies he did not become aware of the article until March 13, 2020, less than one month prior to the filing of this action. Comp. at 7; Doc. No. 1-3 at 1-2. --------
In the article, Defendant reported on a trial in which Plaintiff was convicted of assault and battery with a dangerous weapon related to the beating of a guard employed by the Logan County Jail. Doc. No. 1-1. In his Complaint, Plaintiff never explicitly explains what information contained within the article is allegedly false, however, it may be related to the gender of the victim. The article described the guard as female. Id. The witness and exhibit list from the underlying trial, also submitted with Plaintiff's Complaint, appears to indicate the victim was male. Doc. No. 1-2. By this action, Plaintiff purports to assert claims against Defendant under the Fifth and Fourteenth Amendments, stating the article was malicious, resulted in defamation of character, and, due to prison politics, put his life in danger. Comp. at 6-7.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 1915(e)(2)(B).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), "[t]he burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Further, a claim is frivolous "where it lacks an arguable basis either in law or in fact" or is "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Analysis
42 U.S.C. § 1983 "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). "[T]he purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). "[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotations omitted). The only proper defendants in a § 1983 action are those who "represent [the State] in some capacity, whether they act in accordance with their authority or misuse it." NCAA v. Tarkanian, 488 U.S. 179, 191 (1988) (quotations omitted).
As an initial matter, Plaintiff asserts due process claims under both the Fifth and Fourteenth Amendments. Comp. at 6. The Fifth Amendment Due Process Clause protects only against action by federal actors and is therefore, not a valid claim under § 1983. Yanaki v. Iomed, Inc., 415 F.3d 1204, 1207 n.4 (10th Cir. 2005). State actors are subject to the Due Process Clause of the Fourteenth Amendment, rather than the Fifth Amendment. Ward v. Anderson, 494 F.3d 929, 932 n.3 (10th Cir. 2007). Thus, the Fifth Amendment is inapplicable and the Court should dismiss the claim. Additionally, the defect is not curable, and the dismissal should be with prejudice. See Curley v. Perry, 246 F.3d 1278, 1282 (10th Cir. 2001) (explaining that because no amendment could cure the defect, the district court properly dismissed the complaint with prejudice).
Plaintiff's Fourteenth Amendment claim should also be dismissed because he has not asserted a claim against a state actor. In order to satisfy the under color of state law element of a § 1983 claim, Plaintiff must show he was deprived of a federal right through conduct that is "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
[T]he party charged with the deprivation must be a person who may fairly be said to be a state actor . . . because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.Id.
Plaintiff asserts his claim in this matter against a journalist who works for a local newspaper. Comp. at 4, 6, 7. The Tenth Circuit has applied four different tests to determine whether a private individual may be subject to liability under §1983 as a state actor: the nexus test, the symbiotic relationship test, the joint action test, and the public function test. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The nexus test requires a "sufficiently close nexus between the government and the challenged conduct" and, in most cases, renders a State liable for a private individual's conduct "only when [the State] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Id. at 1448 (quotations omitted). The symbiotic relationship test asks whether the state "has so far insinuated itself into a position of interdependence with a private party that it must be recognized as a joint participant in the challenged activity." Id. at 1451 (quotations omitted). The joint action test requires courts to "examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights." Id. at 1453. Finally, the public function test asks whether the challenged action is "a function traditionally exclusively reserved to the State . . . ." Id. at 1456 (quotations omitted).
Plaintiff has not alleged any facts in his Complaint to state an actionable claim against Defendant for conduct that was "fairly attributable to the state" under any of these tests. Lugar, 457 U.S. at 937. Indeed, Plaintiff's Complaint never asserts Defendant acted under color of state law, much less any facts that he acted jointly or in some relationship with the State to support a claim under § 1983. Without such allegations, Plaintiff's Complaint fails to allege an actionable § 1983 claim against Defendant.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's Fifth Amendment claim be dismissed with prejudice for failure to state a claim upon which relief could be granted. Additionally, Plaintiff's Fourteenth Amendment claim should be dismissed without prejudice for failure to state a claim upon which relief may be granted. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by May 28th , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 8th day of May, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE