UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 20-61411-CIV-MORENO

ROBERT LEE DARBY II, 

Plaintiff,

vs.

SPRINT CORPORATION 

TELECOMMUNICATION and ASHLEY 

CHERIDOR, Sales,

Defendants.

_________________________________________/

ORDER DISMISSING CASE FOR BEING FRIVOLOUS

THIS CAUSE came before the Court upon pro se Plaintiff’s complaint made under 42 

U.S.C. § 1983 (D.E. 1), filed on July 10, 2020. THE COURT has considered the complaint, the 

pertinent portions of the record, and being otherwise fully advised in the premises, it is

ADJUDGED that the case is DISMISSED and all pending motions are DENIED as MOOT.

Plaintiff’s in forma pauperis complaint brought under section 1983 complains of various 

civil rights violations allegedly committed by Defendants Sprint Corporation (a private company) 

and Ashley Cheridor (a private citizen). At the outset, the Court notes that because he is 

proceeding pro se, Plaintiff is given greater leeway in pleading his complaint. See Haines v. 

Kerner, 404 U.S. 519 (1972). Still, 28 U.S.C. § 1915(e)(2)(B)(i) provides that a court “shall 

dismiss [an in forma pauperis action] at any time if the court determines that . . . the action . . . is 

frivolous or malicious.” According to the United States Supreme Court, a complaint is frivolous 

“where it lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 

A court may dismiss claims under section 1915(e)(2)(B)(i) where they rest on an indisputably 

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meritless legal theory or are comprised of factual contentions that are clearly baseless. Id. at 327. 

Plaintiff’s in forma pauperis complaint appears to assert a section 1983 claim stemming 

from fraud—apparently, he suffered a “bait and switch” at a Sprint retail store resulting in a “very 

high bill that was not recognizable and unusual.” He also appears to assert various other civil 

rights violations that the Court has difficulty deciphering, including violation of “14 amendment 

to affect prior restrain [sic]” and violation of “my rights to affect prior restraint on my rights by 

violation to be free of bias deceptive misleading fraudulent acts of deception.” “Section 1983 

provides a private right of action whenever an individual has been deprived of any constitutional 

or statutory federal right under color of state law.” Schwier v. Cox, 340 F.3d 1284, 1290 (11th Cir. 

2003). “Only in rare circumstances can a private party be viewed as a ‘state actor’ for section 

1983 purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). A private party may 

be held liable as a state actor only if one of the following three conditions is met:

(1) the State has coerced or at least significantly encouraged the action alleged to 

violate the Constitution (“State compulsion test”); (2) the private parties performed

a public function that was traditionally the exclusive prerogative of the State

(“public function test”); or (3) “the State had so far insinuated itself into a position

of interdependence with the [private parties] that it was a joint participant in the

enterprise[ ]” (“nexus/joint action test”).

Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) (quoting NBC, Inc. v. Commc’ns

Workers of Am., 860 F.2d 1022, 1026-27 (11th Cir. 1988)).

Here, the Court finds that even when taking Plaintiff’s allegations as true—as the Court 

must at this stage—none of the alleged actions by the Defendants were undertaken under color of 

state law. In other words, the complaint does not allege any facts showing that the State of Florida

coerced or encouraged the actions of Sprint or Ms. Cheridor, that Sprint or Ms. Cheridor performed 

a public function traditionally performed by the State, or that the State was a joint participant with 

Sprint and/or Ms. Cheridor in allegedly violating Plaintiff’s rights. In sum, the Court dismisses 

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the present claims because they can only be brought against persons who are state government 

officials or employees. This includes people who work for the state, city, county, or other local 

government. Accordingly, because Plaintiff seeks to sue private entities, he fails to state a claim 

upon which relief can be granted, and his complaint is DISMISSED for being frivolous. 

Based also on the foregoing, Plaintiff’s Application to Proceed in District Court Without 

Prepaying Fees or Costs is DENIED as MOOT, and the case is CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida, this 16th of July 2020.

______________________________________

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Robert Lee Darby II

P.O. BOX 741652

Boynton Beach, FL 33474

PRO SE

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