Opinion
Case No. 1:21-cv-64
04-08-2021
JUSTIN M. HEPFL, Plaintiff v. RACHAEL B. BOOT, Defendant
UNITED STATES DISTRICT JUDGE SUSAN PARADISE BAXTER REPORT AND RECOMMENDATION MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is hereby recommended that the Motion for Leave to Proceed in forma pauperis [ECF 3] filed by Plaintiff Justin M. Hepfl (Plaintiff) be granted. It is further recommended that this action be dismissed, without prejudice, for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
II. Report
A. Plaintiff's motion for leave to proceed in forma pauperis
Plaintiff, an inmate incarcerated at SCI-Forest, seeks leave to proceed in forma pauperis. ECF No. 3. In his motion, Plaintiff states that he is unable to pay the filing fee associated with this case. Based upon this averment, as well as a review of Plaintiff's institutional account statement, it appears that Plaintiff is without sufficient funds to pay the costs and fees of the proceedings. Accordingly, his motion for leave to proceed in forma pauperis should be granted and the Clerk should be directed to docket the Complaint.
B. Background
Plaintiff's Complaint asserts a Fourteenth Amendment due process claim against a lone defendant, Rachel B. Boot, identified as Plaintiff's ex-girlfriend and the mother of his child. ECF No. 3-1 at 3-4. Plaintiff contends that Boot has deprived him of visitation rights following their break-up and presented a fraudulent at-home paternity test as evidence in state court during a custody hearing. Id. He seeks an order reinstating his state court appellate rights and directing him to take a DNA paternity test. Id. at 4.
C. Analysis
Having been granted leave to proceed in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed. Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed. Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
Because Plaintiff is proceeding pro se, his allegations, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
In the instant case, Plaintiff's claims against Boot, a private individual, must be dismissed pursuant to §1915(e)(2) because Boot is not a state actor. To establish a claim under 28 U.S.C. §1983, it is axiomatic that a plaintiff must allege the deprivation of a federal right by a person acting under the color of state or territorial law. Williams v. Dark, 844 F.Supp. 210, 213 (E.D. Pa. 1993), aff'd, 19 F.3d 645 (3d Cir. 1994) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). "[P]urely private acts which are not furthered by any actual or purported state authority are not acts under color of state law." Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994).
Plaintiff does not offer any facts in his Complaint to suggest that Boot, a private individual, acted under color of state law. Her participation as a witness and opposing party in a state court legal proceeding does not alter her status as a private citizen for purposes of § 1983 liability. See Humphrey v. Pa. Court of Common Pleas of Phila., 462 F.Supp.2d 532, 536 (E.D. Pa. 2020) (participation in state domestic court proceedings child did not render plaintiff's former partner a state actor). For this reason, Plaintiff's § 1983 claim must be dismissed. See, e.g., Massey v. Crady, 2018 WL 4328002, at *6 (W.D. Pa. Aug. 8, 2018) ("Private citizens . . . are not state actors, and therefore . . . any § 1983 claims against [them] should be dismissed."); Little v. Hammond, 2016 WL 7324593, at *4 (W.D. Pa. Dec. 16, 2016) (same).
III. Conclusion
For the foregoing reasons, it is respectfully recommended that this action be dismissed for failure to state a claim in accordance with 28 U.S.C. § 1915(e)(2). Moreover, leave to amend should not be permitted as there is no set of facts that would allow Boot, a private individual, to be considered a state actor. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (noting that curative amendments should be permitted by the Court unless "it would be inequitable or futile.").
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: