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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CLEVEN MOORER,

Plaintiff,

vs. Case No. 3:11cv167/MCR/EMT

RICHARD VIVIANO,

Defendant.

_______________________________ /

REPORT AND RECOMMENDATION

Plaintiff, a non-prisoner proceeding pro se, commenced this action by filing a civil complaint

under 28 U.S.C. § 1331 or 42 U.S.C. § 1983 (Doc. 1). The court granted leave to proceed in forma

pauperis (Doc. 11). Presently before the court is Plaintiff’s amended complaint (Doc. 13).

Because Plaintiff is proceeding in forma pauperis, the court may dismiss the case if satisfied

that the action 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). A complaint is frivolous under section 1915(e) “where it lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1833, 104 L. Ed.

2d 338 (1989). Dismissals on this ground should only be ordered when the legal theories are

“indisputably meritless,” id., 490 U.S. at 327, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340

(1992). 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 (11th Cir. 1997). The

allegations of the complaint are taken as true and are construed in the light most favorable to

Plaintiff. Davis v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). However,

such acceptance should not be given blindly; only well-pleaded factual allegations are taken as true

and only reasonable inferences are drawn in favor of the plaintiff. See Oladeinde v. City of

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Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992); Marrero v. City of Hialeah, 625 F.2d 499, 502

(5th Cir. 1980); see also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999) (per curiam) 1

(“reasonable inferences” drawn); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974) (“unwarranted deductions of fact are not admitted as true”). A plaintiff must allege more

than mere “labels and conclusions”; the complaint must include “[f]actual allegations . . . [sufficient]

to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955, 1964–65, 167 L. Ed. 2d 929 (2007) (citations and internal quotations omitted). Indeed,

“any conclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as

facts do not prevent dismissal.” Weissman v. Nat’l Ass’n of Sec. Dealers, 500 F.3d 1293, 1305

(11th Cir. 2007) (en banc) (Tjoflat, J., dissenting) (citing Associated Builders, Inc., 505 F.2d at 99). 

The complaint may be dismissed if the facts as pleaded do not state a claim to relief that is plausible

on its face. See Bell Atl. Corp., supra (retiring the often-criticized “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). Upon review of the complaint, the court concludes that

dismissal of this action is warranted.

I. RELEVANT ALLEGATIONS

Plaintiff, a resident of the State of New York, names one Defendant in this action, Richard

Viviano, an attorney at the Legal Aid Society in White Plains, New York (Doc. 13 at 1, 2). He states

Mr. Viviano represented him in two criminal matters (Doc. 13 at 3; see also Doc. 1 at 5, 7). Plaintiff

states Mr. Viviano threatened not to win his cases and told him that no other lawyer would win his

cases (Doc. 13 at 3; see also Doc. 1 at 5). As a result, Plaintiff was incarcerated for fifty-four (54)

months in one case, and twenty-one (21) months in the other (Doc. 13 at 3; see also Doc. 1 at 7). 

Plaintiff seeks monetary damages for suffering (Doc. 13 at 4). He additionally seeks Mr. Viviano’s 

disbarment because “[h]is cases just did not work out right” (id.).

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted

1

as precedent all of the decisions of the former Fifth Circuit decided prior to October 1, 1981.

Case No: 3:11cv167/MCR/EMT

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II. ANALYSIS

Plaintiff does not identify any federal right he contends Mr. Viviano violated, nor does he

otherwise allege facts suggesting this case arises under the Constitution or federal law. Therefore,

it does not appear that a basis for federal question jurisdiction exists.2

Additionally, as Plaintiff was previously advised, to the extent he seeks to sue Mr. Viviano

under § 1983, he cannot state a plausible cause of action. “Section 1983 creates a private right of

action for damages and injunctive relief against individuals and governmental bodies whose conduct

under the color of state or local law deprives a plaintiff of rights, privileges, or immunities ‘secured

by the Constitution or laws.’” Arnold v. Board of Educ. of Escambia County, Ala., 880 F.2d 305,

309 (11th Cir. 1989). To state a prima facie claim under section 1983, Plaintiff must allege:

1. the defendant’s conduct caused the constitutional violation, and

2. the challenged conduct was “under color of state law.”

See Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912, 68 L. Ed. 2d 420, 428 (1981),

overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662

(1986); Duke v. Cleland, 5 F.3d 1399, 1403 (11th Cir. 1993) (citing Parratt). A private party does

not normally act under color of state law and is therefore not subject to suit under section 1983. See

Dennis v. Sparks, 449 U.S. 24, 27–29, 101 S. Ct. 183, 186, 66 L. Ed. 2d 185 (1980); Adickes v. S.H.

Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L. Ed. 2d 142 (1970). “Only in rare

circumstances can a private party be viewed as a ‘state actor’ for section 1983 purposes.” Harvey

v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). Private parties may be viewed as state actors for

section 1983 purposes if one of the following three tests 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

interdependencewith 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 (11th Cir. 2001) (citations

and internal quotation marks omitted).

Diversity jurisdiction does not exist because Plaintiff asserts he and Mr. Viviano reside in New York (Doc.

2

13 at 2).

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In the instant case, Plaintiff has failed to show that Mr. Viviano was a state actorfor purposes

of § 1983. Therefore, he cannot state a claim for relief under that statute. 

Moreover, the holding in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d

383 (1994) bars Plaintiff’s claim for monetary damages. In Heck, the Supreme Court stated that an

action under § 1983 that by its nature challenges the lawfulness of a conviction or sentence is not

cognizable unless and until the sentence or conviction is “reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such determination, or called

into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” 512 U.S.

at 487. In this case, Plaintiff’s damages claim rests on the contention that Mr. Viviano’s allegedly

unlawful representation led to Plaintiff’s incarceration. Were this court to make a determination in

Plaintiff’s favor, it would call into question the validity of his convictions. Plaintiff does not allege

he obtained an invalidation of either of his convictions. Therefore, this action should be dismissed.

Based upon the foregoing, it is respectfully RECOMMENDED:

1. That this action be DISMISSED for failure to state a claim on which relief may be

granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

2. That the clerk be directed to enter judgment accordingly and close the file.

At Pensacola, Florida, this 28 day of June 2011. th

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all 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 (11th Cir. 1988).

Case No: 3:11cv167/MCR/EMT

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