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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

NORMAN A MCCRARY,

Plaintiff,

v. CASE NO. 1:10-cv-00117-MP-AK

TOBACCO-FIRM ARMY, et al,

Defendants.

_____________________________/

O R D E R

Plaintiff brings this cause of action pursuant to 42 U.S.C. §1983 alleging that Defendants,

unidentified manufacturers of the pepper spray used at prisons, have committed “silent

genocide,” and for relief he seeks an order directing them to provide better information about its

product. Plaintiff complains that his eyes water when these products are used and there is

uncertainty about their long term effects. 

These claims are frivolous and fail to state a claim for relief.

Further, Plaintiff has again submitted insufficient papers for leave to proceed in forma

pauperis, in that his prisoner consent form is not signed. 

Thus, the Court finds that the amended motion for leave to proceed (doc. 12) should be

DENIED, and this cause DISMISSED. 

A court may 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. Pro se complaints are to be held

to a less stringent standard than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964,

967 (11th Cir. 1986), citing Haines v. Kerner, 404 U.S. 519, 520-1, 92 S. Ct. 594, 596, 30 L. Ed.
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Case No: 1:10-cv-00117-MP-AK

2d 652 (1972). However, a plaintiff is still required to "set forth factual allegations, either direct

or inferential, respecting each material element necessary to sustain recovery under some

actionable legal theory." Worst v. Hart, 1995 WL 431357, *2 (N.D. Fla. 1995). It cannot be

assumed that a Plaintiff will prove facts which have not been alleged. Quality Foods de Centro

America, 711 F.2d at 995, citing Associated General Contractors of California, Inc. v. California

State Council of Carpenters, 459 U.S. 519, 103 S. Ct. 897, 902, 74 L. Ed. 2d 723 (1983). Hence,

even though the pleading standard for a pro se complaint is quite liberal, “bald assertions and

conclusions of law will not suffice.” Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). 

The Court is required to dismiss a complaint at any time if it is determined to be

frivolous. 28 U.S.C. §1915(e)(2)(B)(I). Typically, a court should serve the complaint and have

benefit of the defendant’s response before making such a determination, but there are compelling

reasons for immediately dismissing frivolous suits by prisoners since they unduly burden the

courts, obscure meritorious claims, and require innocent parties to expend significant resources

in their defense. Williams v. Secretary for the Department of Corrections, 131 Fed. Appx. 682,

686 (11th Cir. 2005). Dismissal prior to service is also appropriate when the Court determines

from the face of the complaint that the factual allegations are clearly baseless or that the legal

theories are indisputably meritless. Williams, supra; Carroll v. Gross, 984 F.2d 392, 393 (11th

Cir. 1993).

A successful section 1983 action requires a plaintiff to show he was deprived of 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). Although private individuals and entities may be held liable

under §1983, such persons must be jointly engaged with state officials in the prohibited conduct
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Case No: 1:10-cv-00117-MP-AK

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 joint participant in the enterprise. Rayburn, etc. v. Hogue, 241 F.3d

1341, 1347 (11th Cir. 2001). 

Plaintiff has offered no facts to support a relationship between the manufacturer of the

pepper spray and the prison officials. Indeed, Plaintiff has not even adequately identified the

manufacturer so that service of process could be achieved even if the Court were to find that the

complaint should be served. He has not asserted any injuries and seeks no damages. Obviously,

Plaintiff is not serious about his claims and the Court should not expend any further effort in

processing this case. Accordingly, it is

ORDERED AND ADJUDGED:

1. Plaintiff’s Amended Motion for Leave (doc. 12) is DENIED.

2. This cause is DISMISSED as frivolous and the Clerk should note on the docket that

this dismissal constitutes a strike within the meaning of 28 U.S.C. §1915(g).

DONE AND ORDERED this 12th day of August, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge