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Nelson v. Southern

United States District Court, E.D. North Carolina, Western Division

May 18, 2015

SAMUEL JUNIOR NELSON, Plaintiff,
v.
SHELTON SOUTHERN, et al., Defendants.

ORDER

JAMES C. FOX, Senior District Judge.

On November 19, 2014, Plaintiff, a state inmate proceeding prose, filed this action pursuant to 42 U.S.C. § 1983. Compl. [DE-1]. Plaintiff has requested leave to proceed without prepayment of the full civil filing fee [DE-2]. The matter is now before the undersigned for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B)

In reviewing an in forma pauperis application, a court "shall dismiss" any case that is "frivolous or malicious, " that "fails to state a claim on which relief can be granted, " or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-490 (iii). A case is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, U.S. 319, 325 (1989). A case is frivolous if it "lacks an arguable basis either in law or in fact." Id. The standard used to evaluate the sufficiency of the pleading is flexible, and a prose complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation omitted). Erickson, however, does not dispense with the "requirement that a pleading contain more than labels and conclusions.'" Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Bell Atlantic Com. v. Twombly, 550 U.S. 544, 555 (2007)); see Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Nemet Chevrolet Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255-56 (4th Cir. 2009); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Here, Plaintiff attempts to name two private citizens as defendants. Specifically, Plaintiff contends that, prior to his incarceration, Defendant Southern recommended that Plaintiff live with Defendant McKinsy. Compl. [DE-1], p. 3. After he was incarcerated, Plaintiff "left some personal property... at [Defendant] McKinsy's residency." Id.[1] Defendant McKinsy now allegedly refuses to return Plaintiff's personal property. Id.[2] "To state a claim under [section] 1983, a 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." West v. Atkins, 487 U.S. 42, 48 (1988); Filarsky v. Delia, 132 S.Ct. 1657, 1661-62 (2012); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Additionally, a section 1983 plaintiff must allege the personal involvement of a defendant.[3] See, e.g., Iqbal, 556 U.S. at 676; Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Therefore, the party charged with a constitutional deprivation in a 42 U.S.C. § 1983 action generally must be a state actor. Debauche v. Trani, 191 F.3d 499, 506-507 (4th Cir.1999). While there are "four exclusive circumstances[4] under which a private party can be deemed to be a state actor" and subject to § 1983 liability, DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir.1999), Plaintiff has not identified any conduct by these individuals which would allow the court to find that these two private citizens acted under color of law for purposes of § 1983.[5] These two individuals are not a state actors, nor do they have a sufficiently close relationship with state actors that the court would conclude that the non-state actor is engaged in the state's actions. Id. Accordingly, Plaintiff's claims are DISMISSED.

Conclusion

For the aforementioned reasons, Plaintiff's complaint is DISMISSED as frivolous and the Clerk of Court is directed to close this case.

SO ORDERED.


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