1

 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1981).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES DAVID BROWN §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-2419-K 

§

LARRY STOKES §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. §

636(b) and a standing order of reference from the district court. The findings and recommendation

of the magistrate judge are as follow:

I.

This is a pro se civil action brought by Charles David Brown, an inmate in the TDCJ-ID,

against Larry Stokes, the assistant manager of an O'Reilly Auto Parts store in Greenville, Texas.

On December 9, 2005, plaintiff tendered a complaint to the district clerk and filed an application to

proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit

indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed

in forma pauperis and allowed the complaint to be filed. A Spears1 questionnaire then was sent to

plaintiff in order to obtain additional information about the factual basis of his suit. Plaintiff

answered the questionnaire on January 19, 2006. The court now determines that this case should

be summarily dismissed for lack of subject matter jurisdiction.

 

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II.

Plaintiff alleges that he sustained serious personal injuries when defendant physically

assaulted him at an O'Reilly Auto Parts store on or about February 10, 2004. He also accuses

defendant of destroying a videotape recording of the incident. By this suit, plaintiff seeks $2 million

in damages.

III.

The court must initially examine the basis for federal subject matter jurisdiction. Unless

otherwise provided by statute, federal district courts have jurisdiction over: (1) federal questions

arising under the Constitution, laws, or treaties of the United States; and (2) civil actions between

citizens of different states or foreign nations where the amount in controversy exceeds $75,000,

exclusive of interest and costs. See 28 U.S.C. §§ 1331 & 1332. A party seeking to invoke the

jurisdiction of a federal court must prove that jurisdiction is proper. See Boudreau v. United States,

53 F.3d 81, 82 (5th Cir. 1995), cert. denied, 116 S.Ct. 771 (1996).

Plaintiff apparently believes that federal jurisdiction is proper under 42 U.S.C. § 1983.

(Spears Quest. #2). In order to maintain a civil action under that statute, plaintiff must show that

he has been deprived of a federally protected right by a person acting "under color of state law." 42

U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40

(1988). Defendant is a private citizen, not a state actor. Private action may give rise to section 1983

liability only when the challenged conduct is "fairly attributable to the State." Bass v. Parkwood

Hospital, 180 F.3d 234, 241 (5th Cir. 1999). Plaintiff fails to allege any facts which, if proved,

constitute state action and thus support the exercise of federal question jurisdiction. Nor is there any

basis for federal diversity jurisdiction as plaintiff and defendant are both citizens of Texas. (Spears

Quest. #4). Consequently, this case must be dismissed.

 

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2

 The disposition of this case does not preclude plaintiff from suing defendant in Texas state court.

RECOMMENDATION

Plaintiff's complaint should be summarily dismissed without prejudice for lack of subject

matter jurisdiction.2

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: January 20, 2006.

 

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