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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CHARLES WIGGINS,

Plaintiff,

vs. Case No: 3:09cv332/MCR/MD

KULONE TERRELLE,

PHILLIP TERRELLE, 

Defendants.

_____________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

This cause is before the court upon plaintiff’s complaint (doc. 1) filed pursuant

to 28 U.S.C. § 1331 and 42 U.S.C. § 1983, and his motion to proceed in forma

pauperis (doc. 2). Good cause having been shown, leave to proceed in forma

pauperis will be granted. However, upon review of plaintiff’s complaint, the court

concludes that plaintiff has not presented and cannot present an actionable claim

in this forum and that dismissal is therefore warranted. 

Plaintiff is a resident of Pineville, Louisiana. (Doc. 1, p. 2; Doc. 2, p. 3). His

complaint names two defendants, Kulone Terrelle andPhillipTerrelle, both residents

of Pineville, Louisiana. The sole factual allegations of the complaint are that plaintiff

has not seen his son in five months, and that the defendants would not allow him to

sign the child’s birth certificate even though plaintiff has “proof” that the child is his. 

(Doc. 1, p. 3). Plaintiff does not identify what legal right has been violated by this

conduct, nor does he identify the relief he seeks from this court.1

Plaintiff left the “Statement of Claims” and “Relief Requested” sections of the complaint form

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completely blank.
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From a review of the complaint, the court can discern no basis for federal

jurisdiction. Plaintiff purports to bring this case under 42 U.S.C. § 1983. In any §

1983 action, the initial inquiry must focus on whether two elements are present: (1)

whether the plaintiff was deprived of a right, immunity, or privilege secured by the

Constitution or laws of the United States, and (2) whether the alleged conduct was

committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S.

527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Griffin v. City of Opa-Locka,

261 F.3d 1295, 1303 (11 Cir. 2001). In the instant case, neither of the defendants th

appear to have been acting under color of state law, and no constitutional violation 2

is alleged. 

Plaintiff has not alleged any other basis for federal jurisdiction over this

action. It is apparent from the face of the complaint that there is no diversity of

citizenship, and plaintiff fails to allege facts to suggest that the amount in

controversy exceeds $75,000. See 28 U.S.C. § 1332. The United States is not a party

It is well-settled that “the party charged with the deprivation must be a person who may fairly

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be said to be a state actor.” Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11 Cir. 2000). This is a

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jurisdictional prerequisite. Nail v. Community Action Agency of Calhoun County, 805 F.2d 1500, 1501

(11 Cir. 1986); see also Haynes v. Sacred Heart Hosp., F.E., 149 Fed. Appx. 854, 855 (11 Cir. 2005)

th th

(unpublished opinion). Only in rare circumstances may a private party be viewed as a state actor for

§ 1983 purposes:

[T]o hold that private parties . . . are State actors, th[e] court must conclude that one

of the following three conditions is met: (1) the State has coerced or at least

significantly encouraged the action alleged to violate the Constitution (State

compulsion test); (2) the private parties performed a public function that was

traditionally the exclusive prerogative of the State (public function test); or (3) the

State had so far insinuated itself into a position of interdependence with the private

parties that it was a joint participant in the enterprise (nexus/joint action test).

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

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omitted). If the court concludes there is no state action, it must dismiss plaintiff’s § 1983 claim. Id.

The court has reviewed defendants’ alleged actions under each of the three state action tests

and finds that, even viewing the allegations in the complaint as true, defendants did not act under

color of state law, nor were their actions fairly attributable to the state.

Case No: 3:09cv332/MCR/MD
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to this case. See 28 U.S.C. § 1346. There appearing no basis for federal jurisdiction,

plaintiff’s complaint should be dismissed. 

Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 2) is GRANTED.

And it is respectfully RECOMMENDED:

That this cause be DISMISSED WITH PREJUDICE for lack of subject matter

jurisdiction, and the clerk be directed to close the file.

At Pensacola, Florida this 12 day of August, 2009. th

 /s/Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within ten days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:09cv332/MCR/MD