Opinion
Civil No. 05-2024.
September 29, 2005
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Darryl Pinkerton brings this pro se civil rights action under 42 U.S.C. § 1983. His complaint (Doc. 2) was filed in forma pauperis (Docs. 3-4), and it is now determined whether it should be served on the defendants. On April 4, 2005, the undersigned entered an order directing the plaintiff to complete, sign, date, and return an attached addendum to his complaint. The court received the addendum on April 14, 2005. (Docs. 6-7.)
I. Background
According to his complaint and addendum, defendant Donna Garcia was working as an informant for the Van Buren Police Department (VBPD), and under the orders of defendant Sergeant Daniel Perry, Garcia and VBPD officers began stalking the plaintiff. Plaintiff contends that he was sentenced to 275 days of imprisonment for a violation of his probation and on a charge of harassment, however he contends that he was set up by the defendants. Specifically, Pinkerton states that Garcia followed him to Texas where he was working. She also called his friends, his work, and forged checks using his name. Garcia also told the VBPD where Pinkerton was located, and Pinkerton states that Garcia "pressed armed robbery charges on [him] when [he] was in Ft. Smith, called police on [him] moving [his] furniture, and called police on [him] 93 times." Pinkerton claims that Daniel Perry covered up the fact that Garcia had forged the checks. (Doc. 7 at ¶¶ 2-4, 6.)
Pinkerton also states that defendant Detective Steven Woodall should be held liable in this action because Woodall assisted in the surveillance of Pinkerton from October 15, 2004 until October 25, 2004. Woodall allegedly called Pinkerton a sexual deviate, a bum, and accused him of being "illerate," despite Pinkerton's two years of college. Pinkerton contends that Woodall should have informed him of the pending investigation. (Doc. 7 at ¶ 1.)
In addition to allegedly ordering Garcia to stalk Pinkerton, the plaintiff also contends that Sergeant Perry failed to inform Pinkerton about the investigation, and Perry took Garcia's word over Pinkerton's. (Doc. 7 at ¶ 2.)
Pinkerton claims that the VBPD should have informed him of Garcia's location and activities and that the VBPD should have kept Pinkerton "out of harm's way." Instead, Pinkerton claims that the VBPD stalked him for two weeks. (Doc. 7 at ¶ 8.) As a result of the actions alleged in the complaint, Pinkerton received a violation of probation and harassment conviction which resulted in 275 days of imprisonment. (Doc. 7 at ¶ 9.)
While Pinkerton does not claim that he was improperly convicted, he does believe that the case against him was "very bias[ed]." (Doc. 7 at ¶ 5.) For relief, Pinkerton requests release from custody and $10,000 for damages and losses. (Doc. 2.)
II. Discussion
Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's "rights, privileges, or immunities secured by the Constitution and laws" of the United States. "To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must show [1] a deprivation [under color of law] of [2] a right, privilege, or immunity secured by the Constitution or the laws of the United States." Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). "[T]o establish a violation of constitutional rights under § 1983, the plaintiff must prove that the defendant's unconstitutional action was the 'cause in fact' of the plaintiff's injury." Butler v. Dowd, 979 F.2d 661, 669 (8th Cir. 1992).
Both section 1983 and 28 U.S.C. § 2254, the federal habeas corpus statute, provide access to federal courts "for claims of unconstitutional treatment at the hands of state officials." See Heck v. Humphrey, 512 U.S. 477, 480, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). However, "they differ in scope and in operation." See id. The Supreme Court, in Preiser v. Rodriguez, 411 U.S. 47, 488-92, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), held that section 1983 could not be used by a prisoner to attack the validity or the length of his confinement. The Court explained that "when a state prisoner is challenging the very fact or duration of his physical confinement," and where "the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment," the prisoner's "sole federal remedy is a writ of habeas corpus." See id. at 499. In Preiser, the Court concluded "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not the fact or length of his custody."
Here, while the plaintiff states that he does not believe he was improperly convicted, he does request that he be released from custody, and he claims that Garcia stalked him and that the case against him was "very biased" because the police believed Garcia's version of events over plaintiff's story. Such a contention, if true, would imply the invalidity of plaintiff's violation of probation and harassment convictions, and thus that claim is not properly brought in a section 1983 claim. See Heck, 512 U.S. at 486-87 (state prisoner's § 1983 action for damages must be dismissed if judgment in favor of plaintiff "would necessarily imply the invalidity of his conviction or sentence," unless conviction or sentence has already been invalidated).
Further, the plaintiff's claim that Perry ordered Garcia to stalk the plaintiff are conclusory, as plaintiff does not state any facts to support such an allegation. A complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief," see Fed.R.Civ.P. 8(a)(2); however, even liberally construed pro se complaints must contain specific facts supporting their conclusions, see Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). Pinkerton has submitted no facts to support the contention that Perry directed Garcia's actions.
As Garcia is not a public official, claims against her may not be brought in a section 1983 action. Private parties are only liable under 42 U.S.C. § 1983 when they have been jointly engaged with public officers in the denial of civil rights. See Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Garcia's alleged actions of stalking the plaintiff, forging checks on his account, calling his friends, and contacting the police and filing police reports do not support a proposition that Garcia was conspiring with state actors to violate Pinkerton's civil rights. "A private person does not conspire with a state official merely by invoking an exercise of the state official's authority." Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir. 1980). Plaintiff has not alleged any facts to suggest that Garcia and the police had a meeting of the minds with regard to violating Pinkerton's constitutional rights. Thus, Garcia, as a private citizen, cannot be held liable under section 1983 on the claims raised in the complaint.
Finally, Pinkerton had no right to be informed of the criminal investigation being conducted by officers Woodall and Perry, and those officers had no obligation to inform the plaintiff about their investigation Cf. Yancey v. Carroll County, KY, 876 F.2d 1238, 1245 (6th Cir. 1989) (conducting of criminal investigation, without more, does not rise to level of constitutional violation cognizable under § 1983). Also, claims that the officers called the plaintiff insulting names is not cognizable under section 1983. See McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (verbal threats and name calling usually are not actionable under § 1983); Miner v. Brackney, 719 F.2d 954, 955 (8th Cir. 1983) (per curiam) (slander is not per se cognizable under § 1983), cert. denied 467 U.S. 1259 (1984).
III. Conclusion
Therefore, plaintiff's complaint should be dismissed as frivolous and for failing to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) (IFP action, or any portion thereof, may be dismissed on such grounds at any time).
Pinkerton has ten days from receipt of this report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely written objections may result in waiver of the right to appeal questions of fact. Pinkerton is reminded that objections must be both timely and specific to trigger de novo review by the district court.