Opinion
CIVIL RIGHTS 42 U.S.C. § 1983, CIVIL ACTION NO. 1:07-CV-2769-ODE.
November 30, 2007
ORDER AND OPINION
Plaintiff has been granted leave to file the instant pro se civil rights complaint. The matter is presently before this Court for a 28 U.S.C. § 1915(e)(2) frivolity screening.
I. The Standard of Review
Title 28 U.S.C. § 1915(e)(2) requires a federal court to dismiss an in forma pauperis complaint at any time if the court determines that the action (1) "is frivolous or malicious," (2) "fails to state a claim on which relief may be granted," or (3) "seeks monetary relief against a defendant who is immune from such relief." A claim is frivolous when it appears from the face of the complaint that the factual allegations are "clearly baseless" or that the legal theories are "indisputably meritless." Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint may be dismissed for failure to state a claim when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Brower v. County of Inyo, 489 U.S. 593, 597 (1989).
In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must satisfy two elements. First, a plaintiff must allege that an act or omission deprived him of a right, privilege, or immunity secured by the Constitution of the United States. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir. 1995). Second, a plaintiff must allege that the act or omission was committed by a person acting under color of state law. Id. If a litigant cannot satisfy these requirements, or fails to provide factual allegations in support of the claim, then the complaint is subject to dismissal, pursuant to 28 U.S.C. § 1915A. See Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1974 (2007) (more than merely "conceivable," a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face"); Papasan v. Allain, 478 U.S. 265, 286 (1986) (the court accepts as true the plaintiff's factual contentions, not his or her legal conclusions that are couched as factual allegations);Bolin v. Story, 225 F.3d 1234, 1243 (11th Cir. 2000) (district court correctly dismissed § 1983 claims for failure to assert any specific misconduct against IRS agent); Beck v. Interstate Brands Corp., 953 F.2d 1275, 1276 (11th Cir. 1992) (the court cannot read into a complaint non-alleged facts).
II. Discussion
Plaintiff alleges that a Defendant he identifies as Mondo solicited a minor for indecent purposes when he persuaded Quanteria Kennedy, a child under the age of eighteen (18), to enter his vehicle. (Doc. 2 at 1-2). Plaintiff states that another individual, Adrian Lovejoy, convinced Ms. Kennedy to exit the vehicle, and Plaintiff does not allege that she suffered any injury. (Id. at 3-4). On another occasion, Mondo allegedly attempted to give Ms. Kennedy his phone number. (Id. at 6).
Plaintiff states that he contacted the Atlanta Police Department, which is named as a Defendant, in an effort to have Mondo arrested for attempted kidnapping. (Id. at 1, 5). Plaintiff states that Ms. Kennedy's father, Defendant Fleming Mitchell Jr., convinced her lie to the police. (Id.).
Plaintiff also alleges that an unspecified crime was committed against Ms. Kennedy by Defendant Drey. (Id. at 2). Plaintiff does not offer any details about this alleged crime.
Apparently as a result of Defendant Mondo, and possibly Defendant Drey, not being arrested, Plaintiff alleges that the Atlanta Police Department has engaged in "selective and malicious enforcement of the law." (Id. at 5). Plaintiff seeks money damages in the amount of $10,000,000.00. (Id. at 6).
The act of arresting an individual is a discretionary one, and a police officer's failure to arrest someone does not create a federal cause of action. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001). Thus, the Atlanta Police Department does not owe a duty to Plaintiff to arrest Defendants Mondo and Drey for their alleged criminal acts against Ms. Kennedy, and this action may be dismissed on this basis.
Additionally, Plaintiff has not suffered an injury by any named Defendant. Therefore, Plaintiff lacks standing to bring this action. See Whitmore v. Arkansas, 495 U.S. 149, 154-56, 158 (1990) (discussing "standing" and explaining that a plaintiff must suffer an "injury in fact"). Thus, even if the Atlanta Police. Department had a duty to arrest Defendants Mondo and Drey, Plaintiff is not the person entitled to bring an action against them.
III. Conclusion
For the reasons given,
IT IS ORDERED that, pursuant to 28 U.S.C. § 1915(e)(2), the instant 42 U.S.C. § 1983 civil rights action is DISMISSED. IT IS SO ORDERED.