Opinion
Civil Action No. 19-cv-00656-LTB-GPG
05-02-2019
TOMMIE L. SMITH, Plaintiff, v. FORT COLLINS RESCUE MISSION, Defendant.
RECOMMENDATION OF DISMISSAL
This matter comes before the Court on the Amended Prisoner Complaint (ECF No. 10). Plaintiff proceeds pro se. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 20). The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Complaint be dismissed with prejudice.
"(ECF No. ___)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). --------
I. Procedural Background
Plaintiff, Tommy Lee Smith, was detained at the Larimer County Detention Facility in Fort Collins, Colorado, at the time he initiated this action on March 6, 2019 by filing pro se a Letter with the Court. On March 7, 2019, Mr. Smith filed a Prisoner Complaint (ECF No. 3) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 4). Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 6).
On March 18, 2019, the Court directed Mr. Smith to file an amended pleading within 30 days because the original complaint failed to state an arguable claim for relief under 42 U.S.C. § 1983. (ECF No. 8). Mr. Smith filed a Motion for Leave to File an Amended Complaint (ECF No. 9) and an Amended Prisoner Complaint (ECF No. 10) the same day. In a March 20, 2019 minute order, the Court recognized that the March 18 Order and Plaintiff's March 18 filings had crossed in the mail and granted Mr. Smith until April 20, 2019 to file an amended pleading, on the court-approved Prisoner Complaint form, in compliance with the March 18 Order. (ECF No. 11).
On March 27, 2019, Mr. Smith filed a Motion for Leave to File an Amended Complaint (ECF No. 12) to modify the Defendant's name in the case caption and setting forth the basis of his claims. On March 29, 2019, Plaintiff filed another Motion to Amend[] Prisoner Complaint (ECF No. 13), which is largely identical to the March 27 motion.
On April 23, 2019, Mr. Smith filed a notice that he would be released from the Larimer County Detention Facility to a drug treatment program in Pueblo, Colorado, and would notify the Court of his new address once it was known. (ECF No. 17). Plaintiff filed a formal change of address on April 25, 2019. (ECF No. 18).
Mr. Smith has now failed to file a (Second) Amended Prisoner Complaint, on the court-approved form, in compliance with the March 18 Order.
II. Legal Standards
The Court construes Mr. Smith's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Mr. Smith has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Therefore, the Court must dismiss any claims in the Complaint that are frivolous See 28 U.S.C. § 1915(e)(2)(B)(i). A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
III. Analysis of the Pleadings
Mr. Smith claims in the original complaint filed on March 7 (ECF No. 3), and in the amended complaint filed on March 18, 2019 (ECF No. 10), that Defendant Fort Collins Rescue Mission violated his due process rights by discriminating against him after he was released on parole and was homeless. Plaintiff states that he was hoping to be admitted to the "Step to Success Program" at the Rescue Mission, but Defendant refused to allow him to bring his keyboard inside the shelter. Defendant also called the police and reported incorrectly that Plaintiff had stolen an amplifier. According to Mr. Smith, the police declined to arrest him on the ground that it was "a civil matter." (Id. at 4). Mr. Smith asserts that he then reported the shelter's fire and health code violations to the City of Fort Collins. The Defendant retaliated by banning him "for the rest of [his] life" (id.), in violation of his First Amendment rights. Mr. Smith requests monetary relief.
Mr. Smith asserts constitutional claims pursuant to 42 U.S.C. § 1983. As discussed in the March 18 Order, to state a claim for relief under § 1983, Plaintiff "must 'allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.'" Bruner v. Baker, 506 F.3d 1021, 1025-26 (10th Cir. 2007) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
The Fort Collins Rescue Mission is a private entity. "Like the state-action requirement of the Fourteenth Amendment, the 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., 526 U.S. at 50 (internal quotation marks omitted). A private actor may be subject to liability under § 1983 if "there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n., 531 U.S. 288, 295 (2001) (quotation marks and citations omitted). However, if a plaintiff "attempts to assert the state action required for a § 1983 claim against private actors based on a conspiracy with government actors, mere conclusory allegations with no supporting factual averments are insufficient. Rather, the plaintiff must specifically plead facts tending to show agreement and concerted action." See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (internal quotation marks omitted).
Despite the Court's warning in the March 18 Order, Mr. Smith did not file an amended pleading alleging specific facts to show that the conduct of the Defendant constituted state action. Moreover, there are no factual allegations suggesting state action in the March 27, 2019 Motion for Leave to File an Amended Complaint (ECF No. 12) or the March 29, 2019 Motion to Amend Prisoner Complaint (ECF No. 13). Therefore, the Court recommends that the pending motions to amend be denied as futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (court may deny motion to amend based on futility). The Court further recommends that this action be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
IV. Recommendation
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the March 27, 2019 Motion for Leave to File an Amended Complaint (ECF No. 12) and the March 29, 2019 Motion to Amend Prisoner Complaint (ECF No. 13) be DENIED as futile. The Magistrate Judge further
RECOMMENDS that the Amended Prisoner Complaint (ECF No. 10) and this action be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B).
DATED at Grand Junction, Colorado, this 2d day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge