United States District Court, S.D. Ohio, Western Division
CLIFFORD L. RUCKER, Plaintiff,
POLICE OFFICER HARDY, et al., Defendants.
REPORT AND RECOMMENDATION
L, Litkovitz, United States Magistrate Judge.
Clifford L. Rucker, proceeding pro se, brings this action
against defendants Tom Holman, "The Kroger
Company" (Kroger), and Police Officer Daryl Hardy,
claiming violations of his rights in connection with an
incident that occurred at a Kroger store in November 2017.
(Doc. 3). Plaintiff claims that defendants racially
discriminated and retaliated against him, denied him customer
service, and ordered the police to physically remove him from
the Kroger store. This matter is before the Court on: (1)
defendant Holman and Kroger's (Kroger defendants) motion
to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) for lack
of subject matter jurisdiction and under Fed.R.Civ.P.
12(b)(6) for failure to state a claim for relief (Doc. 9),
and (2) plaintiffs motion to dismiss the complaint without
prejudice and with leave to refile a properly amended
complaint (Doc. 16), which the Court construes as a response
to defendants' motion, and a motion for leave to amend
the complaint under Fed.R.Civ.P. 15(a). The Kroger defendants
have filed a response to plaintiffs motion. (Doc. 18).
Allegations of the complaint
makes the following allegations in the complaint: On the
evening of November 18, 2017, plaintiff complained to
defendant Holman, the Kroger store manager, about the lack of
service while he was in the Over-the-Rhine Kroger store in
Cincinnati, Ohio. (Doc. 3 at 3-5). Defendant Holman denied
plaintiff and another person "customer service and then
ordered the police officer to put [them] physically  out of
Kroger's for no justifiable reason at all."
(Id. at 4). Defendant Holman "instructed
Officer Hardy ... to handle the situation."
(Id. at 4). Officer Hardy "was one-sided and
refused to listen to the customers [sic] side of the
situation and began to bully, racially profile, harass,
retaliate, coerce, menace, and use demeaning-threatening
language and excessive force upon the plaintiff based upon
the same denial of customer service if he is not
shopping." (Id.). Officer Hardy "put his
hand on the plaintiff to physically force the plaintiff out
of the Kroger's store if he is not shopping."
(Id.). Plaintiff attempted to explain to Officer
Hardy that he was "not allowed to put his hands on"
plaintiff because he was not doing anything criminal or
wrong. (Id.). Officer Hardy "grabbed and pushed
or forced" plaintiff out of the Kroger store under the
express permission of defendants Holman and Kroger.
(Id.). Officer Hardy used profanity and repeatedly
placed his hands on plaintiff to put him out of the store and
threatened to shoot plaintiff with his Taser gun.
(Id. at 5).
claims that defendants' actions violated his federal
constitutional and statutory rights and his rights under the
Ohio Constitution. Plaintiff brings the following six claims
for relief: (1) while acting under color of law and the
Kroger defendants' express authority, "the
Defendant. . . individually, discriminated, and
retaliated" against plaintiff in violation of 42 U.S.C.
§ 12203(a)-(c) and his constitutional rights; (2) while
acting under color of law, defendants violated plaintiffs due
process and equal protection rights under the United States
and Ohio Constitutions; (3) while acting under color of law,
defendants violated plaintiffs "constitutional right to
be free of.. . interference" by subjecting plaintiff to
racial profiling, harassment, and illegal seizure; (4) while
acting under color of law, defendants failed to prevent a
conspiracy between the Kroger manager and CEO and the other
state agents/defendants and failed to prevent a
discriminatory and retaliatory action under 42 U.S.C. §
12203 and 18 U.S.C. §§ 241, 242; (5) while acting
under color of law, defendants subjected plaintiff to a false
arrest and unlawful seizure; and (6) while acting under color
of law, defendants trespassed upon plaintiffs
constitutionally guaranteed rights. Plaintiff asks the Court
to "grant such civil penalties, declaratory, injunctive,
and other relief as the Court "deems just and proper to
protect the interest and rights of [plaintiff] and the
general public against defendant's continued or potential
of abuse of their authority." (Id. at 12).
Defendants' motion to dismiss the complaint
Motion to dismiss plaintiffs claims brought under 42 U.S.C.
Holman and Kroger move to dismiss plaintiffs § 1983
claims asserted in counts two through six of the complaint
under Fed.R.Civ.P. 12(b)(6) for failure to state a claim for
relief. (Doc. 9). Defendants contend that plaintiff cannot
bring claims against them under § 1983 because they are
not state actors and their actions as described in the
complaint were not taken under color of state law.
(Id. at 4).
deciding a motion to dismiss under Rule 12(b)(6), the Court
must accept all factual allegations as true and make
reasonable inferences in favor of the non-moving party.
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571,
575 (6th Cir. 2005)). Only "a short and plain statement
of the claim showing that the pleader is entitled to relief
is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)).
"[T]he statement need only give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests." Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks
omitted) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Although the plaintiff need not
plead specific facts, the "[f]actual allegations must be
enough to raise a right to relief above the speculative
level" and to "state a claim to relief that is
plausible on its face." Id. (quoting
Twombly, 550 U.S. at 555, 570). A plaintiff must
"plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)).
well-settled that a document filed pro se is "to be
liberally construed" and that a pro se complaint,
"however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers[.]" Erickson, 551 U.S. at 94 (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, the Sixth Circuit has recognized that the Supreme
Court's liberal construction case law has not had the
effect of "abrogating] basic pleading essentials"
in pro se suits. Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989).
prevail on a claim for relief brought under § 1983, a
plaintiff must allege: (1) that he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) that the deprivation was caused by a person acting under
color of state law. Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 155 (1978). Generally, a claim brought against
private parties acting in their individual capacities is not
actionable under § 1983. Lindsey v. Detroit
Entm't, LLC, 484 F.3d 824, 827 (6th Cir.
2007)). However, '"[a] private actor acts under
color of state law when its conduct is 'fairly
attributable to the state.'" Id. (quoting
Romanski v. Detroit Ent., L.L.C., 428 F.3d 629, 636
(6th Cir. 2005)).
employ three tests to determine whether the challenged
conduct of a private actor is "fairly attributable to
the state": "(1) the public function test, (2) the
state compulsion test, and (3) the symbiotic relationship or
nexus test." Romanski, 428 F.3d at 636 (citing
Chapman r. Higbee Co., 319 F.3d 825, 833 (6th Cir.
2003) (en banc) (citing Wolotsky v. Huhn,
960 F.2d 1331 (6th Cir. 1992)). The public function test
requires that a private entity "exercise powers which
are traditionally reserved to the state, such as holding
elections ... or eminent domain." Wolotsky, 960
F.2d at 1335 (internal citations omitted). The state
compulsion test is met if a state exercises "such
coercive power or provide[s] such significant encouragement,
either overt or covert, that in law the choice of the private
actor is deemed to be that of the state." Id.
Under the symbiotic relationship or nexus test, a private
party's actions constitute state action "when there
is a sufficiently close nexus between the state and the
challenged action of the regulated entity so that the action
of the latter may be fairly treated as that of the state
itself." Id. (citations omitted).
has failed to state a claim for relief against the Kroger
defendants under § 1983. Defendants Holman and Kroger
are private actors, and plaintiff has not alleged facts that
show their actions are fairly attributable to the state. The
public function test is not satisfied because neither Kroger
nor Holman was performing a function traditionally reserved
to the state. The state compulsion test is not satisfied
because there are no facts to suggest the state exercised any
overt or covert power over Kroger or Holman. Finally, the
symbiotic relationship or nexus test is not satisfied under
the facts plaintiff alleges. Private conduct is not
automatically converted to state action simply because the
private party utilizes public services. Dressier v. Rice,
___ F. App'x ___, 2018 WL 3199385, at *8
(6th Cir. June 28, 2018) (citing Lansing v. City of
Memphis,202 F.3d 821, 831 (6th Cir. 2000)).
"[P]olice assistance in the lawful exercise of
self-help," including "solicit[ing] the aid of an
available police officer to resolve disputes or eject
unwanted individuals," does not transform a private
party into a state ...