Opinion
CIV-21-916-R
09-20-2021
DENNIS RAY RIGSBY, JR, Plaintiff, v. HOPE COMMUNITY SERVICES, INC., et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state pre-trial detainee appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the undersigned recommends Plaintiff's action be dismissed.
I. Background Information
Plaintiff is currently confined at the Custer County Jail located in Arapaho, Oklahoma. Doc. No. 1 (“Comp.”). He was arrested and charged on June 8, 2020, with First Degree Murder. See Oklahoma State Courts Network, Case No. CF- 2020-123, District Court of Custer County. In his Complaint, he names as Defendants, Hope Community Services, Inc., located in Oklahoma City, Oklahoma, and Jane Doe, an employee of the same. Comp. at 12, 14.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=custer&number=CF- 2020-123
By this action, Plaintiff alleges that on June 3, 2020, prior to his arrest, his sister took him to Hope Community Services, Inc. to receive mental health care. Id. at 15. He met with Jane Doe, who identified herself as Plaintiff's case manager. Id. at 16. Plaintiff told her that he was in need of emergency mental health treatment. Ms. Doe instructed Plaintiff to return the following Monday. Id. He asserts a claim of negligence based on Ms. Doe's failure to recognize the emergent nature of Plaintiff's needs and failure to provide needed mental health treatment. Id. at 19.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by parties proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2)(B). After conducting an initial review or at any time during the proceeding, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id.
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Failure to Name State Actors
42 U.S.C. § 1983 “provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotations omitted). The only proper defendants in a § 1983 action are those who “represent [the State] in some capacity, whether they act in accordance with their authority or misuse it.” NCAA v. Tarkanian, 488 U.S. 179, 191 (1988) (quotations omitted).
In order to satisfy the under color of state law element of a § 1983 claim, Plaintiff must show he was deprived of a federal right through conduct that is “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
[T]he party charged with the deprivation must be a person who may fairly be said to be a state actor . . . because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.Id. The Tenth Circuit has applied four different tests to determine whether a private individual may be subject to liability under § 1983 as a state actor: the nexus test, the symbiotic relationship test, the joint action test, and the public function test. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The nexus test requires a “sufficiently close nexus between the government and the challenged conduct” and, in most cases, renders a State liable for a private individual's conduct “only when [the State] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Id. at 1448 (quotations omitted). The symbiotic relationship test asks whether the state “has so far insinuated itself into a position of interdependence with a private party that it must be recognized as a joint participant in the challenged activity.” Id. at 1451 (quotations omitted). The joint action test requires courts to “examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” Id. at 1453. Finally, the public function test asks whether the challenged action is a function “traditionally exclusively reserved to the State . . . .” Id. at 1456 (quotations omitted).
As Defendants in this matter, Plaintiff has not named a state actor but instead a private company and an employee of the same. Comp. at 12, 14. Generally, private companies and corporations do not act under color of state law. Here, during all relevant events, Plaintiff was acting as a private citizen seeking mental health services from a private corporation. He has not asserted any factual allegations that could support a finding that Defendants were acting under color of state law under the four state actor tests discussed above. Additionally, the fact that the company in question and its employee provide mental health services does not change this conclusion. See, cf., Blum v. Yaretsky, 457 U.S. 991, 1008-11 (1982) (holding that nursing home is not a state actor despite extensive state regulation of the industry and explaining a state is not liable for determinations that “ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State.”); Jackson v. Metro. Edison Co., 419 U.S. 345, 358-59 (1974) (holding that heavily regulated electric company's decision is not a state action); Doe v. Rosenberg, 996 F.Supp. 343, 347-58 (S.D.N.Y. 1998) (finding that neither a “private hospital . . . licensed to provide emergency psychiatric services and treat mentally disabled persons, ” the same hospital's physician employees, nor a private physician, each of whom played a decision-making role in involuntarily committing an individual, were state actors); Ridlen v. Four Cty. Counseling Ctr., 809 F.Supp. 1343, 1350-54 (N.D. Ind. 1992) (holding that neither a private, non-profit corporation nor private psychiatrists that provided community mental health services were state actors for purposes of § 1983 liability); Faulk v. Ludwig, 732 F.Supp. 591, 595-99 (W.D. Pa. 1990) (holding that a private, non-profit corporation providing psychological mental health services and a certified social worker employed by the same as a psychotherapist were not state actors under either the close nexus or public function tests, and noting, “[C]onsiderable public funding and extensive regulation by the State is insufficient to turn the conduct of private parties into state action”). Accordingly, it is recommended Plaintiff's action be dismissed for failure to state a claim.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's claims be dismissed with prejudice as the named Defendants are not state actors. Additionally, the dismissal should be counted as a “strike” pursuant to 28 U.S.C. § 1915(g).
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by October 11 th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived”).
Contemporaneous with the filing of the current Report and Recommendation, the undersigned granted Plaintiff's request to proceed in forma pauperis. Doc. No. 7. As explained in the Court's Order, Plaintiff will be required to make monthly payments totaling 20% of the preceding month's income credited to his prison account until he has paid the filing fee in full. Id. He has until October 8, 2021, to voluntarily dismiss his case in order to avoid the payment of said fees. Id. Should Plaintiff choose to do so, the current Report and Recommendation would be rendered moot.
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.