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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DENISE NAILS,

Plaintiff,

vs. Case No: 3:09cv394/MCR/MD

PENSACOLA COVENANT HOSPICE, et al., 

Defendants.

_____________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

This cause is before the court upon plaintiff’s pro se amended complaint (doc.

8) filed pursuant to 42 U.S.C. § 1983, and her motion to proceed in forma pauperis

(doc. 9). Good cause having been shown, leave to proceed in forma pauperis will

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

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

and that dismissal is therefore warranted. 

Since plaintiff is proceeding in forma pauperis, the court must review his

complaint to determine if it is “(i) frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). Dismissals for failure to state a claim are governed

by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v.

Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). In determining whether the complaint th

states a claim upon which relief may be granted, the court accepts all the factual

allegations in the complaint as true and evaluates all inferences derived from those
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facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d

1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as pleaded th

do not state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring

the negatively-glossed “no set of facts” language previously used to describe the

motion to dismiss standard and determining that because plaintiffs had “not nudged

their claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). A complaint is also subject to dismissal

under Rule 12(b)(6) when its allegations--on their face--show that an affirmative

defense bars recovery on the claim. Marsh v. Butler County, Ala., 268 F.3d 1014,

1022 (11 Cir. 2001). th

In this civil rights action, plaintiff is suing Pensacola Covenant Hospice

(“PCH”), which she identifies as a “business corporation;” Dale Knee, Director of

PCH; and Beth Kenward, Officer Manager of Covenant Hospice in Dothan, Alabama. 

Plaintiff complains that she was “disreguard [sic] for volunteer employement [sic]”

on the basis of her race. She further complains that she was not allowed to make

a choice of the time or days she could volunteer, unlike white volunteers. Claiming

violation of her rights under “civil law Rule 42 discrimination against race,” plaintiff

seek monetary damages and “a letter stating that I can work as a volunteer for all

Covenant Hospice associated with the Pensacola Covenant Hospice offices.” (Doc.

8). 

Plaintiff’s claims are not actionable under § 1983, because plaintiff fails to

allege facts showing that any defendant is a state actor. In order to prevail in a civil

rights action under § 1983, a plaintiff must establish that a person acting under color

of state law deprived her of a right, privilege, or immunity secured by the

Constitution or federal law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th

Cir. 2001). “A person acts under color of state law when he acts with authority

possessed by virtue of his employment with the state.” Id. at 1303. 

Case No: 3:09cv394/MCR/MD
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Notably, “the under-color-of-state-law element of § 1983 excludes from its

reach merelyprivate conduct, no matter how discriminatoryor wrongful.” American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130

(1999) (internal quotations omitted). 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 th

quotations omitted). In the instant case, plaintiff’s allegations do not remotely

suggest the kind of joint action with state actors that would subject these private

party defendants to § 1983 liability. Thus, her claims must be dismissed.1

Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 9) is GRANTED.

And it is respectfully RECOMMENDED:

That this cause be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii), and the clerk

be directed to close the file.

At Pensacola, Florida this 30 day of September, 2009.

th

 /s/Miles Davis

MILES DAVIS

UNITEDSTATES MAGISTRATE JUDGE

It is unclear whether plaintiff is also attempting to assert a Title VII employment discrimination

1

claim. However, her allegations fail to suggest that volunteers of Pensacola Covenant Hospice are

paid or otherwise qualify as employees under Title VII. Moreover, she does not indicate that she

exhausted her administrative remedies by filing an EEOC charge and receiving a Notice of Right to

Sue letter, all of which are prerequisites to filing a Title VII suit.

Case No: 3:09cv394/MCR/MD
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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: 3:09cv394/MCR/MD