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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

ROSEMARY CHAVEZ,

Plaintiff,

v. CASE NO. 1:10-cv-219-SPM-GRJ

LOWE’S HOME CENTER, INC., et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff’s pro se amended complaint (Doc. 5)

and Plaintiff’s Motions to Proceed In Forma Pauperis. (Docs. 2 & 6.) 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

the Motions To Proceed In Forma Pauperis (Docs. 2 & 6) should be DENIED and this

case should be DISMISSED.

I. Introduction

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

To Be Used By Pro Se (Non-Prisoner) Litigants In Actions Under 28 U.S.C. § 1331 or §

1346 or 42 U.S.C. § 1983" against a former co-worker, John Wayne Edwards. (Doc. 1.) 

The Court entered an order deferring a ruling on Plaintiff’s Motion to Proceed In Forma

Pauperis (Doc. 2) and granting Plaintiff the opportunity to amend her complaint. (Doc.

4.) The Court advised Plaintiff that she could not bring suit against an employee of a

private corporation under 42 U.S.C. § 1983 because Plaintiff’s original complaint did not

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contain any allegations that Mr. Edwards had acted pursuant to state authority. (Id.) 

The Court also advised Plaintiff that to the extent her complaint sought to allege a claim

for discrimination in employment under Title VII of the Civil Rights Act of 1964 (“Title

VII”) that she could not sue Mr. Edwards because only an employer and not individual

employees can be held liable under Title VII. (Id.) 

Plaintiff chose to amend her complaint – and rather than using the Court’s Title

VII form as suggested by the Court – again filed her amended complaint on the same

“Civil Rights Complaint Form To Be Used By Pro Se (Non-Prisoner) Litigants In Actions

Under 28 U.S.C. § 1331 or § 1346 or 42 U.S.C. § 1983." (Doc. 5.) In Plaintiff’s

amended complaint she names as defendants Lowe’s Home Center Inc. (“Lowe’s”) and

twelve individual Defendants, each of whom are Lowe’s employees, as well as Lowe’s

outside counsel and several entities which appear to be operating units of Lowe’s. 

Rather than setting forth specific facts in support of her claims, Plaintiff submitted

a typewritten list of 102 named claims. (Doc. 5 pp. 8-12.) For example, the list of

claims includes, among a broad array of claims, not caring about customers or

employees, discrimination, violation of state and federal laws, assault, stealing

Plaintiff’s notes, contempt of court, extortion, perjury, and playing with Plaintiff’s hair. 

(Id.) There are no facts provided to support of these claims but only a reference in the

form to a list of dates when Plaintiff contends there were “lies” made to various state

agencies. Plaintiff lists the state agencies as including the Florida Commission on

Human Relations, the Equal Employment Opportunity Commission, the State of Florida

Division of Administrative Hearings, the Florida Department of Children and Family

Services and the Florida Agency for Workforce Innovation. Most notably, however,

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Plaintiff alleges in her amended complaint in bold type “This is NOT a discrimination

case.” and that she is “filing for Personal Injuries caused by Lowe’s Home Center Inc.”

(Doc. 5 pp. 5, 6, 8)(emphasis in original). 

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

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

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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

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

Plaintiff’s amended complaint attempts to bring a host of claims arising under 42

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U.S.C. § 1983, Title VII and Florida state law. As discussed below, however, Plaintiff’s

amended complaint is due to be dismissed because it fails to state a claim for relief

under Title VII, under § 1983, and to the extent Plaintiff only intends to bring claims for

violation of state law, the Court cannot entertain state law claims because there is not

complete diversity of citizenship between Plaintiff and all of the named defendants. 

Plaintiff’s amended complaint fails to allege a claim under § 1983 for at least two

fundamental reasons. First, Plaintiff has sued a private corporation and individuals

employed by a private corporation, none of whom constitute state actors for purposes

of § 1983. Second, the amended complaint is devoid of any mention of a constitutional

right that allegedly was violated. 

 A successful section 1983 action requires a plaintiff to show that she 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

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

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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 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 devoid of any allegations that Lowe’s or any of

the individually named Defendants acted pursuant to state authority or that any of them

is a “state actor” who acted under “color of state law.” While Plaintiff alleges that some

of the defendants filed documents with state and federal agencies for the “ hostile

intention ... [of] assaulting, harassing, depriving, denying, and in ill personal injury to

[Plaintiff],” filing allegedly false documents – even with a governmental agency – does

not make the Defendants state actors for purposes of § 1983. (Doc. 6 p. 5)

Accordingly, in the absence of any facts suggesting that Defendants’ actions were

carried out under color of state law, Plaintiff cannot proceed under § 1983. 

Secondly, in order to allege a claim under § 1983 a plaintiff must allege facts

supporting a violation of Plaintiff’s federal constitutional rights. Again, the amended

complaint contains absolutely no mention that any of Plaintiff’s constitutional rights were

violated. 

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Accordingly, Plaintiff’s Amended Complaint fails to state a claim for relief under §

1983 and, therefore, to the extent Plaintiff intended to proceed under § 1983 her

amended complaint should be dismissed. 

To the extent Plaintiff intended to bring a claim under Title VII the Court can

summarily dispose of this claim. In addition to the fact that Plaintiff may only sue her

employer, and not the employees, for violating Title VII, Plaintiff made her intention 1

abundantly clear in her Amended Complaint that she was not bringing a Title VII

discrimination case. Plaintiff unequivocally declared that “This is NOT a discrimination

case” and that her suit was “for Personal Injuries caused by Lowe’s Home Center Inc.” 

(Doc. 5 pp. 5, 6, 8.) Accordingly, Plaintiff’s Amended Complaint fails to bring a claim

for relief under Title VII.

Lastly, to the extent that Plaintiff is attempting to bring state claims for personal

injuries based upon assault, extortion, and other state law causes of action these

claims cannot be brought in federal court because there is not complete diversity of

citizenship between the Plaintiff and each of the named Defendants. Pursuant to 28

U.S.C. § 1332(a) there must be complete diversity among 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 (11 Cir. 1994)(“Diversity jurisdiction, as a

th

general rule, requires complete diversity-every plaintiff must be diverse from every

defendant.”). 

Although Plaintiff named her employer Lowe’s as a defendant, Plaintiff refused to utilize the

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Court’s Title VII form as she was advised to do by the Court in the Court’s December 9, 2010 Order. (Doc.

4.)

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Because Plaintiff is a Florida resident and at least ten of the named Defendants

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are listed with addresses in Florida there is an absence of complete diversity of

citizenship and, therefore, the Court does not have subject matter jurisdiction over

these claims thus mandating that the Amended Complaint be dismissed. 

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

Motions To Proceed In Forma Pauperis (Docs. 2 & 6) should be DENIED and this

cause should be DISMISSED for failing to state a claim for relief, and as to the state

law claims, because the Court does not have subject matter jurisdiction over these

claims.

At Gainesville, Florida, this 2 day of May, 2011. nd

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.

The Amended Complaint does not disclose the citizenship of the corporate Lowe’s defendants.

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A corporation or other juridical entity is a citizen of the state in which it is incorporated and the state where

its principal place of business is located.

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