1. A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened

1

in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court

to dismiss a prisoner’s civil action prior to service of process if it determines that the complaint is frivolous,

malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant

who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

OZZIE LEE HARDY, JR., #116991, )

)

 Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06-CV-617-MEF

)

COMALA CREDIT UNION, et al., )

)

 Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

In this 42 U.S.C. § 1983 action, Ozzie Lee Hardy, Jr. [“Hardy”], a state inmate,

complains that Comala Credit Union, Paticial Adams, an employee of Comala, and Gary A.

Sylvester, executive vice president of the credit union, violated his constitutional rights when

they committed various criminal acts against him.

Upon review of the complaint, the court concludes that dismissal of this case is

appropriate under 28 U.S.C. § 1915(e)(2)(B)(i). 

1

DISCUSSION

A. 42 U.S.C. § 1983 Claims

Hardy asserts that Ms. Adams “stole [his] identity for the purpose of stealing . . . federal

funds” issued to him by the Veterans Administration. Plaintiff’s Complaint at 4. Hardy further

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argues that Comala Credit Union and Gary A. Sylvester “are in a state of conspiracy against”

him as these defendants have failed to undertake any action after acknowledging liability “for

a crime against . . . Ozzie Lee Hardy.” Id. 

An essential element of a 42 U.S.C. § 1983 action is that the alleged constitutional

deprivation was committed by persons acting under color of state law whose conduct is

reasonably attributable to the State. American Manufacturers Mutual Ins. Co. v. Sullivan, 526

U.S. 40, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Parratt v. Taylor, 451 U.S. 527 (1981);

Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11 Cir. 1993). To state a viable th

claim for relief under § 1983, a plaintiff must assert 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. Like the state-action requirement of the Fourteenth

Amendment, the under-color-of-state-law element of § 1983 excludes from its reach ‘“merely

private conduct, no matter how discriminatory or wrongful,”’ Blum v. Yaretsky, 457 U.S. 991,

1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68

S.Ct. 836, 92 L.Ed. 1161 (1948)).” American Manufacturers, 526 U.S. at 49-50, 119 S.Ct. at

985. Consequently, the Eleventh Circuit has repeatedly insisted “that state action requires both

an alleged constitutional deprivation ‘caused by the exercise of some right or privilege created

by the State or by a rule of conduct imposed by the State or by a person for whom the State is

responsible,’ and that ‘the party charged with the deprivation must be a person who may fairly

be said to be a state actor.’ Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744,

Case 2:06-cv-00617-MEF-CSC Document 3 Filed 07/18/2006 Page 2 of 5
 2. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 2

L.Ed.2d 619 (1971).

 3. Cases dealing with actions of defendants under 42 U.S.C. § 1983 are equally applicable to Bivens claims.

3

Abella, 63 F.3d at 1065.

3

73 L.Ed.2d 482 (1982); see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56

L.Ed.2d 185 (1978).” Id. Likewise, to proceed in a suit filed under Bivens, the challenged 2

actions must have been undertaken by federal officials acting under color of federal law whose

actions are attributable to the government. Abella v. Rubino, 63 F.3d 1063, 1065 (11 Cir.

th

1995); Dean v. Gladney, 621 F.2d 1331, 1336 (5 Cir. 1980), cert. denied, 450 U.S. 983 th

(1981). Although credit unions and their employees may act “‘with the knowledge of and 3

pursuant to’” applicable state and federal laws, Adickes v. S.H. Kress & Co., 398 U.S. 144,

162, n. 23, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), thereby “satisfying the first requirement, [a

plaintiff] still must satisfy the second, whether the allegedly unconstitutional conduct is fairly

attributable to the State.” American Manufacturers, 526 U.S. at 50, 119 S.Ct. at 985. 

The actions about which the plaintiff complains were not committed by persons who

may fairly be considered state or federal actors. Moreover, it is clear that the criminal actions

challenged in the complaint resulted from “merely private conduct” excluded from the reach

of § 1983 and Bivens. In light of the foregoing, the court concludes that the claims presented

against the named defendants are frivolous and subject to summary dismissal in accordance

with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). 

B. Claims of Criminal Actions

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To the extent Hardy seeks relief for alleged criminal actions which violated his

constitutional rights as prohibited by 18 U.S.C. § 241 and § 242, such claims are likewise

subject to summary dismissal. “Title 18 U.S.C. § 241 is a statute that criminalizes conspiracies

against a person’s rights under the Constitution or laws of the United States. There is no

private right of action under this criminal statute. Risley v. Hawk, 918 F.Supp. 18, 21 (D.D.C.

1996), aff’d, 108 F.3d 1396 (D.C. Cir. 1997); Dugar v. Coughlin, 613 F.Supp. 849, 852 n.1

(S.D. N.Y. 1985). . . . Title 18 U.S.C. § 242 makes it a crime to willfully deprive persons

under color of law of their rights under the Constitution or laws of the United States. The

statute does not create a private cause of action. Powers v. Karen, 768 F.Supp. 46, 51

(E.D.N.Y. 1991), aff’d, 963 F.2d 1552 (2 Cir. 1992); Dugar v. Coughlin, 613 F.Supp. 849, nd

852 n.1 (S.D.N.Y. 1985).” Gipson v. Callahan, 18 F.Supp.2d 662, 668 (W.D.Tex 1997).

Thus, Hardy is precluded from obtaining relief under these code sections “because, as criminal

statutes, they do not convey a private right of action” nor do they authorize an individual to

initiate criminal proceedings. Rockefeller v. United States Court of Appeals Office for Tenth

Circuit Judges, 248 F.Supp.2d 17, 23 (D.D.C 2003). Hardy’s claims which arise under 18

U.S.C. § 241 and § 242 are therefore due to be summarily dismissed as frivolous in accordance

with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). 

CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case be

dismissed with prejudice prior to service of process pursuant to the directives of 28 U.S.C. §

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1915(e)(2)(B)(i). 

It is further 

ORDERED that on or before July 31, 2006 the parties may file any objections to the

Recommendation. Any objections filed must specifically identify the findings in the

Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or

general objections will not be considered by the District Court. The parties are advised that

this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the

Magistrate Judge's Recommendation shall bar the party from a de novo determination by the

District Court of issues covered in the Recommendation and shall bar the party from attacking

on appeal factual findings in the Recommendation accepted or adopted by the District Court

except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404

(5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding

precedent all of the decisions of the former Fifth Circuit handed down prior to the close of

business on September 30, 1981.

Done this 18 day of July, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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