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Rucker v. Hardy

United States District Court, S.D. Ohio, Western Division

July 20, 2018

CLIFFORD L. RUCKER, Plaintiff,
v.
POLICE OFFICER HARDY, et al., Defendants.

          Black, J.

          REPORT AND RECOMMENDATION

          Karen L, Litkovitz, United States Magistrate Judge.

         Plaintiff Clifford L. Rucker, proceeding pro se, brings this action against defendants Tom Holman, "The Kroger Company"[1] (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).

         I. Allegations of the complaint

         Plaintiff 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).

         Plaintiff 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)[2] 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[3]; (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).

         II. Defendants' motion to dismiss the complaint

         1. Motion to dismiss plaintiffs claims brought under 42 U.S.C. § 1983

         Defendants 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).

         In 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)).

         It is 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).

         To 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)).

         Courts 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).

         Plaintiff 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 ...


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