Opinion
Civil Action No. 6:06cv173.
June 15, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Arthur James Gilstrap, an inmate confined at the Bradshaw Unit of the Texas prison system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. § 1983. The complaint was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.
The complaint was filed on April 5, 2006. The Plaintiff sued Tujwanda Rochell Davis, his sister, and Carlton Davis, his brother-in-law. He alleged that his sister forged his name on a certificate of deposit in the amount of $10,000. She placed the money in her husband's bank account in order to spend it. The Plaintiff noted he never gave his sister permission to cash his certificate of deposit. The provisions of 42 U.S.C. § 1983 state that every person who acts under color of state law to deprive another of constitutional rights shall be liable to the injured party. A civil rights plaintiff must show an abuse of government power that rises to a constitutional level in order to state a cognizable claim. Love v. King, 784 F.2d 708, 712 (5th Cir. 1986); Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980), cert. denied, 451 U.S. 1019 (1981). Section 1983 suits may be instituted to sue a state employee, or state entity, using or abusing power that is possessed by virtue of state law to violate a person's constitutional rights. See Monroe v. Pape, 365 U.S. 167, 184 (1961); accord, Brown v. Miller, 631 F.2d 408, 410-11 (5th Cir. 1980). It is not available to sue private people who were not acting under color of state law. In the present case, the Defendants are private individuals. The acts attributed to them were not acts under color of state law. The Plaintiff does not have a basis for a federal civil rights lawsuit against them. He may have a basis for a tort claim in state court, but he does not have a basis for a potentially meritorious § 1983 lawsuit. The facts as alleged fail to state a claim upon which relief may be granted and are frivolous in that they lack any basis in law and fact. The lawsuit should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
Recommendation
It is therefore recommended that the complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915A(b)(1).
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report. A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n., 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
SO ORDERED.