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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ROOSEVELT THOMAS,

Plaintiff,

v. CASE NO. 5:10-cv-142-RS-GRJ

HI-IMPACT DESIGNS, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff’s pro se First Amended Complaint

(Doc. 21.) From a review of the amended complaint, it is evident that the facts as

presented fail to state a claim upon which relief can be granted. Accordingly, it is

respectfully RECOMMENDED that this case should be DISMISSED.

I. Introduction

Plaintiff originally filed a complaint on the Court’s Civil Rights Complaint Form To

Be Used By Prisoners In Actions Under 42 U.S.C. § 1983 against his former boss, Scott

Donald Carlson. (Doc. 1.) The Court entered an order granting Plaintiff the opportunity

to amend his complaint. (Doc. 18.) The Court further advised Plaintiff that he could not

bring suit against Mr. Carlson, a private individual, under 42 U.S.C. § 1983 because

there were no allegations in Plaintiff’s original complaint that Mr. Carlson had acted

pursuant to state authority. (Id.) 

Plaintiff chose to amend his complaint and again filed his amended complaint on

the Court’s Complaint Form To Be Used By Prisoners In Actions Under 42 U.S.C. §

1983. (Doc. 21.) In his amended complaint Plaintiff names as defendants his previous

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employer, Hi-Impact Designs Custom Foam & Coating and the owner, Mr. Carlson. 

As a basis for the claims in his amended complaint Plaintiff asserts that his

former employer improperly evicted him from a rental he had been provided at the

place of employment and took his personal property because the Plaintiff refused to

work during a period of time Plaintiff was on bereavement leave after his father’s 

death. 

Plaintiff alleges that from 2005 through 2007 he was employed by Mr. Carlson as

a finisher at Hi-Impact Designs Custom Foam & Coating (“Hi-Impact”), a business in

Pensacola that is apparently owned by Mr. Carlson. (Doc. 21 at 5-6.) In February 2006,

Mr. Carlson offered Plaintiff the chance to live in a mobile home at the Pensacola job

site in exchange for $200 in monthly rent. Plaintiff and Defendant Carlson entered into

an oral lease agreement for the mobile home and the arrangement functioned smoothly

for over a year. In the fall 2007, however, Plaintiff’s father died and Mr. Carlson granted

Plaintiff as much time as Plaintiff needed in bereavement leave. 

The trouble between Plaintiff and the employer s began in October 2007 while

Plaintiff was still on bereavement leave. Plaintiff went by the Hi-Impact offices to pick

up his paycheck and Defendant Carlson refused to give him his paycheck, reportedly

telling Plaintiff that Plaintiff needed to return to work. Plaintiff informed Carlson that he

was still grieving after his father’s death and that he would remain on bereavement

leave until he was sufficiently recovered to go back to work. Three days after Plaintiff

was refused his paycheck, however, he visited the job site and discovered that the

mobile home in which he had been living — as well as all his personal property inside

the home — had mysteriously disappeared. Upon discovering that the mobile home

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was missing Plaintiff called Defendant Carlson to inquire as to where the mobile home

and his belongings had gone. Defendant Carlson told Plaintiff that he had taken the

mobile home and Plaintiff’s personal property in retaliation for Plaintiff’s refusal to work

while on bereavement leave. Defendant Carlson then called Plaintiff’s probation officer

and the Escambia County Sheriff’s Office to inform each that Plaintiff had moved in

further retaliation against Plaintiff. Plaintiff seeks to bring claims against the

Defendants for involuntary servitude, libel, slander and a host of other common lasw

causes of action.

II. Standard of Review

The screening process under 28 U.S.C. §1915 applies to non-prisoner pro se

litigants who are proceeding in forma pauperis. Boyington v. Geo Group, Inc., 2009

WL 3157642 (M.D. Fla.), citing Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002)

(dismissals under 28 U.S.C. 1915 apply to non-prisoners, even if fee assessment

provisions do not). In order to authorize a litigant to proceed in forma pauperis, the

court must make two determinations: first, whether the litigant is unable to pay the costs

of commencing this action; and second, whether the action is frivolous or malicious.”

Dycus v. Astrue, 2009 WL 47497, at *1 (S.D. Ala.2009). An application to proceed in

forma pauperis may be denied if the plaintiff either fails to satisfy the poverty

requirement or if plaintiff's claim is frivolous. Martinez v. Kristi Kleaner's Inc., 364 F.3d

1305, 1306 (11th Cir.2004); see also Attwood v. Singletary, 105 F.3d 610, 613 (11th

Cir.1997) (stating that a court may dismiss the case if the allegation of poverty is untrue,

or if satisfied that the action is frivolous or malicious).

A claim is frivolous if it is based on an indisputably meritless legal theory. Neitzke

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v. Williams, 490 U.S. 319, 317 (1989) (applying section 1915). This circuit has defined a

frivolous appeal under section 1915 as being one ‘without arguable merit. “ Harris v.

Menendez, 817 F.2d 737, 739 (11th Cir.1987) (quoting Watson v. Ault, 525 F.2d 886

892 (5th Cir.1976)). ‘Arguable means capable of being convincingly argued. “Moreland

v. Wharton, 899 F.2d 1168, 1170 (11th Cir.1990) (per curiam) (quoting Menendez, 817

F.2d at 740 n. 5); see Clark v. State of Ga. Pardons and Paroles Bd., 915 F.2d 636,

639 (11th Cir. 1990) (lawsuit is frivolous if the plaintiff's chances of ultimate success are

slight); see also Weeks v. Jones, 100 F.3d 124, 127 (11th Cir.1996) (stating that

[f]actual allegations are frivolous for purpose of [28 U.S.C.] 1915(d) when they are

clearly baseless; legal theories are frivolous when they are indisputably meritless. ”)

(citations omitted).

A court may sua sponte dismiss a case proceeding in forma pauperis if the

complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. 

The complaint's [f]actual allegations must be enough to raise a right to relief above the

speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); see also Cobb v.

Florida, 293 Fed. Appx. 708 (11th Cir. 2008) (applying Twombly to a prisoner’s pro se

complaint brought under 42 U.S.C. §1983 and dismissing the claim pursuant to 28

U.S.C. §1915A). “The Supreme Court's most recent formulation of the pleading

specificity standard is that ‘stating such a claim requires a complaint with enough

factual matter (taken as true) to suggest’ the required element.” Watts v. Florida

International University, 495 F.3d 1289, 1295 (11th Cir. 2007). This standard simply

calls for enough facts to raise a reasonable expectation that discovery will reveal

evidence of the required element. Twombly, at 1965. In reviewing the dismissal of a

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complaint under the 28 U.S.C. 1915A(b)(1), this court accepts allegations in the

complaint as true, and pro se pleadings are liberally construed. Brown v. Johnson, 387

F.3d 1344, 1350 (11th Cir. 2004).

III. Discussion

The claims In Plaintiff’s amended complaint are brought pursuant to 42 U.S.C. §

1983 and Florida state law. To the extent that Plaintiff attempts to bring claims under §

1983 the claims are due to be dismissed because the Defendants are not state actors.

To the extent that Plaintiff is also attempting to bring claims under state law, the Court

does not have subject matter jurisdiction to entertain these claims because there is no

diversity of jurisdiction

A. Claims Under Section 1983

A successful section 1983 action requires a plaintiff to show that he was

deprived of a federal right by a person acting “under color of state law.” Harvey v.

Harvey, 949 F.2d 1127, 1130 (11 Cir. 1992)(citing Flagg Brothers, Inc. v. Brooks, 436 th

U.S. 149, 155-56 (1978)). A person acts under color of state law when he acts with

authority possessed by virtue of his employment with the state. Edwards v. Wallace

Community College, 49 F.3d 1517, 1522 (11 Cir. 1995)(citing West v. Atkins, 487 U.S.

th

42, 48-50 (1988)). “The dispositive issue is whether the official was acting pursuant to

the power he/she possessed by state authority or acting only as a private individual.” 

Id. at 1523 (citing Monroe v. Pape, 365 U.S. 167, 183-84 (1961)(overruled on other

grounds by Monell v. Department of Social Servs., 436 U.S. 658 (1978))). 

Although private individuals and entities may be held liable under §1983, such

persons must be jointly engaged with state officials in the prohibited conduct to

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constitute acting under color of state law for purposes of the statute. Adickes v. Kress &

Co., 398 U.S. 144, 152 (1970). Private action may be deemed state action for §1983

purposes only when the challenged conduct may be "fairly attributable to the State."

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). 

To hold that private parties are acting under color of state law pursuant to 42

U.S.C. § 1983, Plaintiff must prove one of the following three conditions: (1) that the

state has coerced or significantly encouraged the parties to violate the Constitution; (2)

the private parties performed a public function that was traditionally the exclusive

province of the State; or (3) the State had so far insinuated itself into a position of

interdependence with the private parties that it was joint participant in the enterprise. 

Rayburn, ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11 Cir. 2001). th

Plaintiff’s amended complaint is completely devoid of any allegations

demonstrating that the Defendants acted pursuant to state authority or that either

Defendant is a “state actor” or acted under “color of state law. Rather, it is evident that

the Defendants at all times were private individuals and thus not engaged in state

action. 

Moreover, the alleged wrongful conduct alleged against the Defendants at best

alleges a violation of state law and not a constitutional violation. The refusal to pay

Plaintiff or the alleged theft of Plaintiff’s personal property simply do not give rise to a

constitutional violation. While the conduct may support a claim under state law, the

Plaintiff may not pursue his claims in federal court in a § 1983 action. 

B. State Law Claims

To the extent Plaintiff is attempting to bring claims in his amended complaint for

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libel, slander, and other state law causes of action the Court does not have subject

matter jurisdiction to adjudicate these claims.

Plaintiff alleges that Hi-Impact Designs and its owner, Scott Carlson, are located

in Pensacola, Florida. The Plaintiff is currently an inmate housed at the Graceville

Facility in Graceville, Florida. Section 1332(a) requires complete diversity of citizenship

between the parties in order for a federal court to have diversity jurisdiction over an

action. See, e.g., Palmer v. Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1564 (11th

Cir. 1994)(“Diversity jurisdiction, as a general rule, requires complete diversity-every

plaintiff must be diverse from every defendant.”). Because the Plaintiff and both

Defendants are citizens of Florida the Court does not have diversity jurisdiction over the

state law claims and, accordingly, the amended complaint also is due to be dismissed

on these grounds.

IV. Recommendation

 Accordingly, for these reasons, it is respectfully RECOMMENDED that this

cause should be DISMISSED for failure to state a claim for relief and for lack of subject

matter jurisdiction.

At Gainesville, Florida, this 16 day of June, 2011.

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

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