Opinion
Case No. 1:06CV34-MMP/AK.
April 12, 2006
REPORT AND RECOMMENDATION
Plaintiff brings this cause of action pursuant to 42 U.S.C. § 1983 alleging that he suffered cruel and unusual punishment at the hands of Walmart and its employees when he suffered a laceration to his back during a scuffle with a security officer and others at the store. (Doc. 1).
A court may dismiss a case proceeding in forma pauperis if the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A.
Plaintiff has failed to allege claims under federal or constitutional law because constitutional violations do not apply to private citizens or corporations unless they act under color of state law. See Smartt v. First Union National Bank, 245 F.Supp.2d 1229, 1233 (MD Fla. 2003). A private person acts under color of state law when engaged in a conspiracy with state officials to deprive another of federal rights. Tower v. Glover, 467 U.S. 914 (1984). However, if the assertion of a conspiracy between a state official and a private party is unsupported by any operative facts, is insufficient to show the required state-action nexus.Dessasau v. Cook, 2001 WL 34395880 (11th Cir.). A court must determine on a case by case basis whether there is sufficient state action by a private actor to sustain a section 1983 cause of action. Willis v. University Health Services, 993 F.2d 837 (11th Cir. 1993). A plaintiff must show that the "symbiotic relationship between the public and private entities" involved the alleged violation of federal or constitutional law. Patrick v. Floyd Medical Center, 201 F.3d 1313, 1316 (11th Cir. 2000).
Plaintiff makes no such showing of a nexus between the acts of Walmart or its employees, and his claims against them should be dismissed.
In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's complaint (doc. 1) be DISMISSED with prejudice for failure to state a claim and that this dismissal shall constitute a strike under 28 U.S.C. § 1915(g).