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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DALE A COPEMANN,

Plaintiff,

v. CASE NO. 1:10-cv-00228-SPM -GRJ

CITIFINANCIAL BANK, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff has filed a complaint, a motion for leave to proceed in forma pauperis,

and a motion for court appointed counsel, which have been transferred to this Court

from the United States District Court for the District of Columbia. (Doc. 4). Plaintiff is

proceeding pro se and has filed this cause alleging that Citifinancial Bank and a loan

officer in that bank, Jennifer Schwarze, violated his civil rights when his loan was

denied after she obtained his credit report. (Doc. 1). He also makes vague allegations

that she was involved in “identity theft” with the Equifax Credit Bureau. Lastly, Plaintiff

alleges that the bank officer violated his rights under Fla. Stat. § 501.005, a provision of

Florida law that deals with placing a security freeze on a consumer report.

The screening process under 28 U.S.C. §1915 applies to a non-prisoner pro se

litigant, like Plaintiff, who is proceeding in forma pauperis. Boyington v. Geo Group,

Inc., case no. 2:09-cv-570-FtM-29SPC, 2009 WL 3157642 at *1 (M.D. Fla. September

25, 2009); Calhoun v. Stahl, 254 F.3d 845 (9 Cir. 2001); see also Troville v. Venz, 303 th

F.3d 1256, 1260 (11 Cir. 2002)(affirming the application of § 1915's provisions to a

th

non-prisoner’s complaint). 
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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,

Case no. CA 08-0727-KD-C, 2009 WL 47497, at *1 (S.D. Ala. Jan. 7, 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 upon 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).

Because Plaintiff has identified his cause of action on the civil cover sheet as an

action brought under 42 U.S.C. § 1983, Plaintiff must allege facts which arguably could

Case No: 1:10-cv-00228-SPM -GRJ
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give rise to a § 1983 claim. Plaintiff has failed to do so for a number of fundamental

reasons. 

First and foremost, Plaintiff has failed to allege any action by the bank or bank

officer (or anyone else) under color of state law. 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). 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

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interdependence with the private parties that it was joint participant in the enterprise. 

Rayburn, etc. v. Hogue, 241 F.3d 1341, 1347 (11 Cir. 2001). th

Plaintiff has failed to allege any facts suggesting any link between the actions of

the bank or the bank loan officer and any state action. In the absence of any facts

suggesting that the conduct was carried out under color of state law, Plaintiff cannot

proceed in federal court under § 1983.

In addition to the fact that the conduct alleged in the Complaint does not involve

state action, the Complaint is devoid of any facts suggesting that Plaintiff’s civil rights

were violated. 

Lastly, to the extent that Plaintiff is attempting to allege that his rights were

violated under Florida law, an action cannot be maintained under § 1983 for violation of

state law. Section 1983 is limited to claims for violation of federal rights based upon

conduct carried out under color of state law. Simply put, the claim must involve a

violation of a federal right against an actor who is acting under color of state law. Based

upon the facts alleged in the Complaint, Plaintiff cannot establish either.

In light of the foregoing, it is respectfully RECOMMENDED: 

The Motion for IFP and for appointment of counsel (docs. 2 and 3) should be

DENIED and this cause should be DISMISSED for failure to state a claim for relief.

At Gainesville, Florida, this 1 day of December 2010.

st

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

Case No: 1:10-cv-00228-SPM -GRJ
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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: 1:10-cv-00228-SPM -GRJ