2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-9-2009

Jimmie L. Cook v. Phil Indovina

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1347

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Recommended Citation

"Jimmie L. Cook v. Phil Indovina" (2009). 2009 Decisions. Paper 282.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

NO. 09-1347

___________

JIMMIE L. COOK,

 Appellant

v.

PHIL INDOVINA; PHIL’S FLICKS & 

ASSOCIATES; LINDA COOK

____________________________________

On Appeal From the United States District Court

For the Western District of Pennsylvania

(W.D. Pa. Civ. No. 08-cv-0054)

District Judge: David Stewart Cercone

________________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 28, 2009

Before: McKEE, FUENTES and NYGAARD, Circuit Judges

Opinion filed: November 9, 2009

_________

OPINION

_________

PER CURIAM

Appellant Jimmie L. Cook, proceeding pro se, appeals the order of the District

Court dismissing his complaint for lack of subject matter jurisdiction and/or failure to

state a claim upon which relief can be granted. For the following reasons, we will affirm.
2

I.

On January 14, 2008, Cook filed a motion to proceed in forma pauperis (“IFP”)

and a complaint seeking to pursue a civil rights action. Cook alleges that he and a friend,

Linda May, were subjected to mistreatment by the owner of a video rental store and a

cashier during an incident at the store. According to the complaint, Cook and May went

to the video store, where May became engaged in a dispute with the cashier over whether

she owed a late fee. Several days later, Cook and May returned to the store, and Cook

became embroiled in a confrontation with a different cashier. The cashier called the store

owner, who in turn called the police. Cook complains that the police officers treated him

rudely and refused to let him explain what happened, repeatedly telling him to “shut up.” 

The owner arrived and told the officers that he would resolve the situation. Cook asserts

that the owner assaulted him, attempted to provoke him into a physical confrontation, and

ordered him to leave the store. 

Later that evening, May attempted to report the incident to the local chief of

police, and to one of the officers who had responded to the owner’s call. Cook complains

that the police chief failed to return May’s call; he admits that the officer did return the

call, although May was not present to receive it. May also requested that a police cruiser

be sent to her residence so that she could file a complaint, but her request was denied. 

Cook filed this complaint in January 2008, claiming that the defendants’ conduct

was motivated “only because of his freedom of speech and his skin color, African
 Had the District Court’s order not run afoul of the “separate document” requirement 1

of Federal Rule of Civil Procedure 58(a), Cook’s appeal would be untimely. Cook filed

his notice of appeal on January 23, 2009, more than thirty days after the District Court’s

November 10, 2008 order dismissing his Complaint. He did not file a motion seeking to

extend time, nor has he alleged that he did not receive notice of the entry of the order

within twenty-one days. Fed. R. App. P. 4(a)(5)(A), (a)(6). However, Cook filed the

notice of appeal well within the time provided by Rule 4(a)(7)(A)(ii). Accordingly, we

have jurisdiction over Cook’s appeal.

3

American.” He also states that the local police chief and responding officers conspired

with the store owner to discriminate against him, and neglected their official duties. On

November 10, 2008, the District Court granted Cook IFP status and dismissed the

complaint for lack of subject matter jurisdiction, or, in the alternative, failure to state a

claim upon which relief can be granted. Cook filed his notice of appeal on January 23,

2009.

II.

We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s 1

sua sponte dismissal of Cook’s complaint pursuant to § 1915(e)(2)(B) is plenary. See

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We must accept as true all of the

allegations contained in the complaint and draw all inferences from the facts alleged in

the light most favorable to the plaintiff. See Phillips v. County of Allegheny, 515 F.3d

224, 233 (3d Cir. 2008). A plaintiff must allege in his complaint “‘enough facts to raise a

reasonable expectation that discovery will reveal evidence of’ the necessary element[s]”

of a cause of action. Id. at 234 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 556
 To the extent that Cook’s complaint could be read to claim that the police officers 2

violated his constitutional rights, his assertion–that the police would not let him explain

what happened in the video store and failed to follow up phone calls–do not suggest that

he could show that the police violated his constitutional rights.

4

(2007)). We may affirm the District Court’s order on any basis supported by the record. 

See Fairview Township v. EPA, 773 F.2d 517, 525 n. 15 (3d Cir. 1985).

III.

The District Court correctly concluded that Cook failed to state a claim. A

plaintiff asserting a civil rights action must show that he was deprived of a right secured

by the Constitution or laws of the United States, and that the alleged deprivation was

committed under color of state law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 49-50 (1999). Private conduct is excluded, “no matter how discriminatory or

wrongful.” Id. Cook’s complaint concerns conduct by private individuals, and therefore

does not state a cognizable claim. To the extent that Cook claims that the police

conspired with the video store owner and employee to discriminate against him because

of protected speech or his race, we agree with the District Court that the allegations are

conclusory and thus do not state a plausible claim for relief. See Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949-50 (2009).2

We see no indication in the record that the District Court gave Cook an

opportunity to amend his complaint after its initial screening. “[E]ven when a plaintiff

does not seek leave to amend, if a complaint is vulnerable to [] dismissal, a District Court
5

must permit a curative amendment, unless an amendment would be inequitable or futile.” 

Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004); see also Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Nor does the District Court speak to the

inequity or futility of such an amendment in its opinion. Nonetheless, after careful review

of the record and Cook’s brief on appeal, we conclude that amendment would have been

futile.

VI.

For the foregoing reasons, we will affirm the District Court’s judgment.