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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DALE A COPEMANN,

Plaintiffs,

v. CASE NO. 1:11-cv-00040-MP-GRJ

SUSAN ALTMAN, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, has filed a First Amended Complaint (Doc. 8) and an

amended Motion To Proceed In Forma Pauperis (Doc. 9) after being directed to do so

by the Court in the Court’s March 3, 2011 Order. (Doc. 7.) 

In the Court’s March 3, 2011 Order Plaintiff was directed to identify what federal

laws the defendants violated and explain how Defendants Altman and Bush acted

under color of state law. Id. Plaintiff alleges that Defendants Susan Altman and Linda

Bush – two employees at Vocational Rehabilitation in Gainesville, Florida – violated

his rights under the Fourteenth Amendment by treating him in a disrespectful manner. 

Plaintiff complains that Ms. Altman failed to provide him with financial forms to enroll in

a rehabilitation program. Further, Plaintiff alleges that when he insisted that Ms. Bush

provide him with the form he needed Ms. Bush requested that Plaintiff leave the facility

or go to a psychiatric facility. (Doc. 8.) 

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)
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(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

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 successful section 1983 action requires a plaintiff to show he was deprived of

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a federal right by a person acting under “color of state law.” Harvey v. Harvey, 949 F.2d

1127, 1130 (11th Cir. 1992) citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56,

98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (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, 1722 (11th Cir. 1995) citing

West v. Atkins, 487 U.S. 42, 48-50, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (1988). 

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 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, a 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 a

joint participant in the enterprise. Rayburn, etc. v. Hogue, 241 F.3d 1341, 1347 (11th

Cir. 2001).

The reason Plaintiff was required to file an amended complaint was to include

allegations demonstrating that Defendants Bush and Altman were state actors. The

First Amended Complaint is devoid of any allegations suggesting that the Defendants

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could be considered state actors. The absence of any allegations that the Defendants

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are state actors is fatal to Plaintiff’s claim under § 1983.

In addition to the fact that Plaintiff has failed to demonstrate the Defendants are

state actors, the facts alleged by Plaintiff fail to give rise to a claim for violation of

Plaintiff’s constitutional rights. The alleged failure to provide the Plaintiff with requested

forms and the alleged treatment of Plaintiff in a disrespectful manner while not optimal

due not rise to the level of a constitutional violation. Accordingly, Plaintiff has not – and

cannot on these facts – state a claim for relief under 42 U.S.C. §1983. Therefore,

because Plaintiff’s claims are without arguable merit and are frivolous the First

Amended Complaint is due to be dismissed.

In light of the foregoing, it is respectfully RECOMMENDED: 

That the Plaintiff’s Motion To Proceed In Forma Pauperis (Doc. 9) should be

DENIED and this cause should be DISMISSED as frivolous and for failure to state a

claim for relief.

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At Gainesville, Florida, this 18 day of March, 2011.

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

W hile Plaintiff included allegations in the original complaint implying that the Defendants may

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have been involved in administering a State of Florida education program, Plaintiff has not included these

allegations in the First Amended Complaint or made any attempt to demonstrate that the Defendants may

be sued as state actors.

Although the docket does not reflect that Plaintiff’s Motion to Appoint Counsel (Doc. 3) was ruled

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upon by the District Court for the District of Columbia before this case was transferred to the Northern

District of Florida the motion to appoint counsel (Doc.3) should also be DENIED because the claim is

frivolous and does not fall within the exceptional circumstance where counsel may be necessary.

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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.

Case No: 1:11-cv-00040-MP-GRJ