Opinion
CIVIL ACTION NO. 1:18-cv-01294
01-15-2020
PHILIP E. RAMSEY, Plaintiff, v. ROBERT M. JACKSON d/b/a RMJ VETERANS CTR., Defendant.
(JONES, J.)
() REPORT AND RECOMMENDATION
This is a pro se civil rights action. The plaintiff, Philip E. Ramsey, has been granted leave to proceed in forma pauperis. We recommend that this action be dismissed sua sponte as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The plaintiff has repeatedly styled himself as "Philip E. Ramsey, Esquire" or "Philip E. Ramsey, Esq." in the caption and body of his pleadings and motion papers. We have omitted the "Esquire" or "Esq." suffix because he is not an active or retired attorney—at least not one licensed by the Pennsylvania bar. See Ramsey v. Nate, Civil Action No. 1:18-cv-643, 2018 WL 2326670, at *1 n.1 (M.D. Pa. Apr. 11, 2018), report and recommendation adopted by 2018 WL 2322570 (M.D. Pa. May 22, 2018).
In his complaint, Ramsey alleges that, in April 2017, he made arrangements with defendant Robert M. Jackson for Ramsey to reside at the "RMJ Veterans Center" in Harrisburg, Pennsylvania. Over the next thirteen months, Ramsey allegedly gave Jackson approximately $2,000 for "several brief stays" at the RMJ Veterans Center, the last of which ended in May 2018. After that, Ramsey left the premises permanently due to perceived threats of physical violence by unspecified individuals. Ramsey allegedly left behind four boxes of personal property, which he intended to retrieve after relocating to a new residence in Harrisburg in July 2018. The complaint does not request any specific relief.
Ramsey purports to bring this action under the Americans with Disabilities Act ("ADA") and 42 U.S.C. § 1983.
Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
The "under color of state law" element of § 1983 excludes from its reach "merely private conduct, no matter how discriminatory or wrongful." Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). It is beyond cavil that Robert M. Jackson d/b/a RMJ Veterans Center is a private individual and a private housing operator, not an arm of the state. See Waldron v. Kozachyn, Civil No. 19-16928 (RBK/KMW), 2019 WL 4785766, at *3-*4 (D.N.J. Oct. 1, 2019); Solivan v. Valley Hous. Dev'p Corp., Civil Action No. 08-2722, 2009 WL 3763920, at *8-*10 (E.D. Pa. Nov. 9, 2009). Under limited circumstances, a private individual may be liable under § 1983 if his or her conduct is so closely related to governmental conduct that it can be fairly viewed as conduct of the state itself. See Mark, 51 F.3d at 1142-43 (detailing the various tests used to analyze whether private conduct may be treated as state action). But none of the conduct alleged by Ramsey can be fairly viewed as state action. He has failed to allege facts to plausibly demonstrate that the defendant "acted with the help of or in concert with state officials." Id. at 1142. Thus, the plaintiff's claim for relief under 42 U.S.C. § 1983 is clearly based on an indisputably meritless legal theory and should be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See Brett v. Zimmerman, Civil Action No. 1:15-cv-02414, 2018 WL 6576412, at *6 (M.D. Pa. Nov. 2, 2018) (recommending dismissal of § 1983 claims against private individual as frivolous), report and recommendation adopted by 2018 WL 6567721 (M.D. Pa. Dec. 13, 2018); Toroney v. Woyten, Civ. A. No. 86-4871, 1986 WL 11081, at *1 (E.D. Pa. Oct. 3, 1986) (dismissing § 1983 claims against private actor as frivolous).
Furthermore, although the plaintiff has expressly referenced the ADA, he has not pleaded any facts whatsoever to establish any element required for a claim under the ADA. See Ramsey v. Nate, Civil Action No. 1:18-cv-643, 2018 WL 2326670, at *3 (M.D. Pa. Apr. 11, 2018), report and recommendation adopted by 2018 WL 2322570 (M.D. Pa. May 22, 2018). See generally Emrit v. Lycoming Hous. Auth., Civil Action No. 4:16-cv- 02022, 2017 WL 2532966, at *6-*7 (M.D. Pa. May 17, 2017) (setting forth ADA requirements in context of public accommodations), report and recommendation adopted by 2017 WL 2506427 (M.D. Pa. June 9, 2017). Because he has failed to allege any facts whatsoever to support an ADA claim, this claim too should be dismissed as frivolous. See Fanelli v. United States, ___ Fed. Cl. ___, 2020 WL 133526, at *5 n.6 (Jan. 13, 2020); Perry v. Wagganer, No. 4:17-CV-2748 CDP, 2018 WL 2298825, at *4 (E.D. Mo. May 21, 2018); Des Rochers v. Moynihan, No. A-16-CV-567-SS-ML, 2016 WL 11584835, at *4 (W.D. Tex. May 19, 2016).
Accordingly, it is recommended that this action be dismissed as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Dated: January 15, 2020
/s/_________
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 15, 2020. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: January 15, 2020
/s/_________
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge