United States District Court, S.D. Ohio, Western Division
ROBERT L. SIMMONS, Plaintiff,
RODNEY MCMULLEN, et al., Defendants.
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge
a resident of Covington, Kentucky, brings this pro se civil
rights action against Rodney McMullen, the CEO of
Kroger's, and Timothy A. Massa, the Senior V.P. of
Kroger's Human Resources. By separate Order, plaintiff
has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. This matter is before the
Court for a sua sponte review of plaintiffs complaint to
determine whether the complaint, or any portion of it, should
be dismissed because it is frivolous, malicious, fails to
state a claim upon which relief may be granted or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B).
enacting the original in for ma pauperis statute,
Congress recognized that a "litigant whose filing fees
and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits."
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id; see also 28 U.S.C. §
1915(e)(2)(B)(i). A complaint may be dismissed as frivolous
when the plaintiff cannot make any claim with a rational or
arguable basis in fact or law. Neitzke, 490 U.S. at
328-29; see also Lawler v. Marshall, 898 F.2d 1196,
1198 (6th Cir. 1990). An action has no arguable legal basis
when the defendant is immune from suit or when plaintiff
claims a violation of a legal interest which clearly does not
exist. Neitzke, 490 U.S. at 327. An action has no
arguable factual basis when the allegations are delusional or
rise to the level of the irrational or "wholly
incredible." Denton, 504 U.S. at 32;
Lawler, 898 F.2d at 1199. The Court need not accept
as true factual allegations that are "fantastic or
delusional" in reviewing a complaint for frivolousness.
Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).
also has authorized the sua sponte dismissal of
complaints that fail to state a claim upon which relief may
be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A complaint
filed by a pro se plaintiff must be "liberally
construed" and "held to less stringent standards
than formal pleadings drafted by lawyers." Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the
same token, however, the complaint "must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Hill, 630 F.3d at 470-71
("dismissal standard articulated in Iqbal and
Twombly governs dismissals for failure to state a
claim" under §§ 1915A(b)(1) and
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The Court must accept all
well-pleaded factual allegations as true, but need not
"accept as true a legal conclusion couched as a factual
allegation." Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain "detailed factual
allegations," it must provide "more than an
accusation." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers
"labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual
enhancement." Id. at 557. The complaint must
"give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests."
Ehckson, 551 U.S. at 93 (citations omitted).
se complaint states that on December 9, 2019, plaintiff and
his roommate, Christy Stanfield, went to a Kroger's store
in Fort Mitchell, Kentucky. Plaintiff alleges that he
requested two slices of pizza from the hot food area from an
employee named Susan, and the employee ignored him. However,
when Ms. Stanfield requested slices of pizza, the employee
retrieved the pizza for them. Plaintiff also made a request
for fried chicken, to which the employee responded by
pointing to a display across the store and stating,
"There's chicken over there." (Doc. 1-1 at 5,
Complaint). Plaintiff asked why the employee was sending him
to the other side of the store when there was chicken in the
case in front of him, but the employee ignored him. Plaintiff
concluded that the employee did not want to wait on him.
Plaintiff spoke to a manager to complain about the
employee's behavior and refusal to wait on him. Plaintiff
told the manager that "maybe Kroger's built this
store for a particular group of people because if they hired
(Susan) then she made it clear that I'm not wanted
here." (Id.). The manager advised plaintiff
that he would take care of it and told plaintiff not to call
the corporate office. Plaintiff alleges these actions
constitute racial discrimination and violated his equal
protection and due process rights under the Fourteenth
Amendment. Plaintiff seek monetary and injunctive relief.
allegations are insufficient to state a claim with an
arguable basis in law over which this federal Court has
subject matter jurisdiction.
complaint fails to state a claim for discrimination under the
United States Constitution pursuant to 42 U.S.C. § 1983.
In order to maintain an action under 42 U.S.C. § 1983,
plaintiff must allege that a person acting under color of
state law deprived him of some right secured by the
Constitution or laws of the United States. Graham v.
National Collegiate Athletic Ass's 804 F.2d
953, 957 (6th Cir. 1986) (citing Parratt v. Taylor,
451 U.S. 527, 535 (1981), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327 (1986)).
Plaintiff alleges a violation of his equal protection and due
process rights. However, his claims cannot proceed because
there is no state action as required under § 1983. As
explained by one court in a similar case:
One possible statute, 42 U.S.C. § 1983, provides a cause
of action for denial of equal protection under the Fourteenth
Amendment against state government officials. Parratt v.
Taylor, 451 U.S. 527, 535 (1981). The [defendant] is a
private party, not a government entity. A private party may
be held liable under § 1983 only when the party
"acted together with or . . . obtained significant aid
from state officials" and did so to such a degree that
its actions may properly be characterized as "state
action." Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982). A Defendant may also be considered a state
actor if the Defendant exercises powers traditionally
reserved to a state. Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 352 (1974). There are no facts in the
Complaint to suggest that in this case, the [defendant] could
be sued as a government entity under § 1983.
Moore v. Horseshoe Casino, No. 1:15 CV 471, 2015 WL
4743804, at *2 (N.D. Ohio Aug. 11, 2015). Likewise, plaintiff
in this case has failed to allege conduct that could
plausibly be characterized as state action. Therefore, his
§ 1983 constitutional claims should be dismissed.
extent plaintiff may seek to bring a claim under 42 U.S.C.
§ 1981, which prohibits intentional racial
discrimination by both public and private actors in the
context of contractual relationships, the complaint fails to
state a claim for relief. To state a claim for relief under
§ 1981 in the non-employment context, plaintiff must
allege facts showing that: (1) he belongs to a protected
class of persons who are subject to discrimination on the
basis of their race; (2) he sought to make or enforce a
contract for services ordinarily provided by the defendant;
and (3) he was "denied the right to enter into or enjoy
the benefits or privileges of the contractual
relationship" in that (a) he "was deprived of
services while similarly situated persons outside the
protected class were not" or (b) he was treated in a
"markedly hostile manner" and in a manner that a
reasonable person would find "objectively
discriminatory." Christian v. Wal-Mart Stores,
Inc., 252 F.3d 862, 867-68 (6th Cir, 2001). Plaintiffs
complaint does not allege his race or the race of his
roommate, who was allegedly served by the Kroger's
employee. Therefore, plaintiff does not satisfy the first and
third prongs of a § 1981 claim, and the complaint fails
to state a plausible claim for relief.
THEREFORE RECOMMENDED THAT:
Plaintiffs claims be ...