# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 27, 2016 *

Decided October 27, 2016

Before

RICHARD A. POSNER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

No. 15

‐ 2660

J ASON HOSEA,

Plaintiff

‐ Appellant

,

v

.

WILLIS SLAUGHTER, et al

. Defendants

‐ Appellees

. Appeal from the United States District

Court for the Central District of Illinois.

No. 14

‐ 1397

J ames E. Shadid,

Chief Judge

.

O R D E R

Jason Hosea challenges the dismissal of his suit under 42 U.S.C. § 1983 against the

manager and owner of a storage lot (Willis Slaughter and Steve Timmerman), a police

officer (Todd Keil), and two municipalities. His complaint appears to arise out of a

dispute relating to cars that he stores at the lot. He alleges that Slaughter and

Timmerman “racially discriminat[ed]” against him by “trying to cheat” him out of his

“vehicles” and “involving” the police to “make it look legal.” The district court

dismissed Hosea’s complaint for failure to state a claim. It reasoned that Hosea did not

* We have unanimously agreed to decide the case without oral argument because

the briefs and record adequately present the facts and legal arguments, and oral

argument would not significantly aid the court. Rule 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 15

‐ 2660 Page 2

allege that either Slaughter or Timmerman acted “under color of state law,” as required

for claims under § 1983. It also explained that Hosea did not allege that Keil violated any

of Hosea’s constitutional rights or that his injuries arose from a municipal practice.

Because this reasoning is correct, we affirm the district court’s judgment.

In his opening brief on appeal Hosea does not meaningfully challenge the reasons

that the district court dismissed the case. But we have considered the issues that we can

discern from Hosea’s other filings. First we understand Hosea to argue that the district

court erred in not recruiting a lawyer for him. But Hosea had made no attempts to obtain

counsel on his own. When a litigant does not attempt to secure a lawyer, a district court

does not abuse its discretion in denying the litigant’s request to have the court recruit

one for him. See Pruitt v. Mote

, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc).

We also understand Hosea to argue that the district court erred in deciding to

dismiss the complaint without a “hearing” on the facts of his case. Rule 12(b)(6) allows

district courts to dismiss complaints that fail to state a legal claim without holding live

hearings to determine the facts alleged in those cases. See Gibson v. City of Chicago

,

910 F.2d 1510, 1520 (7th Cir. 1990) (“The purpose of a motion to dismiss is to test the

sufficiency of the complaint, not to decide the merits.”).

For completeness we observe that the district court correctly ruled that the

complaint was legally deficient. Slaughter and Timmerman cannot be liable under § 1983

without any factual allegations that they acted under color of state law. See Armato

v. Grounds

, 766 F.3d 713, 719–20 (7th Cir. 2014). Also because Hosea does not allege that

officer Kiel did anything beyond responding to a request for police action, Hosea does

not state a claim against him under § 1983. See Ortiz v. City of Chicago

, 656 F.3d 523, 539

(7th Cir. 2011) (explaining that plaintiff must allege that state actors intentionally

“caused the deprivation of a federal right”) (quoting Hafer v. Melo

, 502 U.S. 21 (1991)).

And as the district court correctly observed, municipalities are not liable under § 1983

when, as here, the plaintiff has not alleged an unconstitutional custom or policy.

See Matthews v. City of East St. Louis

, 675 F.3d 703, 708–09 (7th Cir. 2012).

We are mindful that the district court did not offer Hosea, a pro se litigant, a

chance to amend his complaint. “Courts should grant non

‐ fee

‐ paying plaintiffs, such as

[Hosea], the same opportunity to amend a dismissed complaint as fee

‐ paying plaintiffs

receive.” Hughes v. Harris, 809 F.3d 330, 333–34 (7th Cir. 2015). And as we said in Foster

v. DeLuca

, 545 F.3d 582, 584 (7th Cir. 2008), “[d]istrict courts routinely do not terminate a

case at the same time that they grant a defendant ʹ s motion to dismiss; rather, theyNo. 15

‐ 2660 Page 3

generally dismiss the plaintiff ʹ s complaint without prejudice and give the plaintiff at

least one opportunity to amend her complaint.” But a remand would be pointless. When

the defendants identified the complaint’s deficiencies in their motions to dismiss, Hosea

filed responses, but none cured the deficiencies. Moreover, in this court Hosea has

offered no factual elaborations that rectify the deficiencies that the district court noted in

dismissing the case. See Gonzalez

‐ Koeneke v. West

, 791 F.3d 801, 808–09 (7th Cir. 2015);

Indep. Trust Corp. v. Stewart Info. Servs. Corp.

, 665 F.3d 930, 943–44 (7th Cir. 2012).

Because Hosea has a history of filing baseless suits like this one, the Central

District of Illinois has barred him from filing suits without prepaying the filings fees. We

now warn Hosea that frivolous appeals may result in a monetary sanction, the

nonpayment of which will lead to a filing bar under Support Sys. Int’l v. Mack

, 45 F.3d

185, 186 (7th Cir. 1995).

AFFIRMED.