Opinion
3:03-CV-0928-N.
July 1, 2003.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is an action brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Lynaugh Unit of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID) in Fort Stockton, Texas. Defendant is McDonald Corporation. The court has not issued process in this case.
Statement of the Case: The complaint alleges civil rights violations pursuant to 42 U.S.C. § 1981, 1983, 1985 and 1988. Specifically Plaintiff asserts that McDonald Corporation violated his constitutional rights when it falsely represented that its restaurants were serving beef-free fries. He requests compensatory and punitive damages.
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Sections 1915A and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff's civil rights claims lack an arguable basis in law. Even when liberally construed, the complaint does not involve the impairment of a contract right. See 42 U.S.C. § 1981 (forbidding discrimination in the "mak[ing] and enforce[ment]" of contracts). Therefore, § 1981 does not provide relief.
The terms of 42 U.S.C. § 1981(a) provide:
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
Plaintiff's reliance on 42 U.S.C. § 1983 fares no better. The alleged misrepresentations of McDonald Corporation were not under color of state law. Section 1983 affords redress only for conduct committed by a person acting under color of state law and does not ordinarily involve conduct of a private citizen or corporation. Scott v. Moore, 85 F.3d 230, 233 (5th Cir. 1996);Thibodeaux v. Bordelon, 740 F.2d 329, 332 (5th Cir. 1984).
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Next Plaintiff relies on 42 U.S.C. § 1985, which addresses conspiracies to violate civil rights. The complaint, however, does not even vaguely raise a conspiracy claim against McDonald Corporation in connection with the alleged misrepresentation of its beef-free fries.
42 U.S.C. § 1985 provides as follows:
(1) Preventing officer from performing duties
If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;
(2) Obstructing justice; intimidating party, witness, or juror
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
(3) Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Nor can Plaintiff rely on section 1988 as an apparent "catchall." As the Fifth Circuit noted in 1985, the scope of § 1988 is in considerable doubt. Delesma v. City of Dallas, 770 F.2d 1334, 1337 (5th Cir. 1985). In Moor v. County of Alameda, 411 U.S. 693 (1973), the Supreme Court held that § 1988 instructs federal courts as to what law to apply in causes of action arising under federal civil rights acts, however, the Court pointed out that § 1988, standing, alone, did not authorize the "wholesale importation into federal law of state causes of action." Moor, 411 U.S. at 703-04.
Plaintiff's § 1988 claim, asserted as a "catchall," should fail. As noted above, Plaintiff's claims under §§ 1981, 1983 and 1985 are frivolous and should be dismissed. Since Plaintiff's complaint does not otherwise arise under federal civil rights law, and does not sufficiently state a cause of action under federal civil rights law, the Magistrate Judge finds that it would be unnecessary to use § 1988 for the purpose of importing state law into this federal forum. In any event, the Supreme Court has directed the opposite. Accordingly, Plaintiff's § 1988 claim is untenable and without merit and should be dismissed.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss Plaintiff's complaint with prejudice as frivolous.See 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.