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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LARRY EARL STALLWORTH, 

Plaintiff,

v. Case No. 3:11cv178/MCR/CJK

AMERICAN FAMILY LIFE ASSURANCE

 COMPANY OF COLUMBUS, et al.,

Defendants.

____________________________________________________________________

ORDER and

AMENDED REPORT AND RECOMMENDATION

On April 19, 2011, the undersigned issued an Order and Report and

Recommendation granting plaintiff’s motion to proceed in forma pauperis and

recommending that this civil rights action be dismissed under 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. (Doc.

3). This Amended Report and Recommendation is submitted following plaintiff’s

filing of an amended complaint. (Doc. 4).

Since 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). 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). Dismissalsfor failure to state a claim are governed

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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 factual

allegations in the complaint as true and evaluates all reasonable inferences derived

from those 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 th

pleaded 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 offacts” 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 barsrecovery on the claim. Marsh v. Butler Cnty., Ala., 268 F.3d

1014, 1022 (11 Cir. 2001). th

Plaintiff’s original complaint, filed pro se under 42 U.S.C. § 1983, named two

defendants: American Family Life Assurance Company of Columbus, Georgia

(“AFLAC”) and Ann Braswell, an AFLAC employee. (Doc. 1, pp. 1-2). Plaintiff

claimed the defendants violated his rights to due process and equal protection under

the Fourteenth Amendment “by taking my money and refusing to pay the claim.” 

(Id., p. 4). As relief, plaintiff sought unspecified damages. (Id.). The undersigned

recommended dismissal of the complaint for failure to state a claim, because even

liberally construing plaintiff’s allegations they did not remotely suggest the kind of

“state action” required to hold private parties liable under § 1983. (Doc. 3).

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Within the time for filing an objection to the Report and Recommendation,

plaintiff filed an amended complaint. (Doc. 4). Plaintiff submitted his amended

complaint on the court form for use by prisoners asserting claims under 42 U.S.C.

§ 1983, even though plaintiffis not incarcerated. His amended complaint namesfour

defendants: AFLAC; Ms. Braswell; Paul Amos, AFLAC’s president; and Keisha

Weeks, an employee in AFLAC’s compliance department. (Id., pp. 1-2). Again,

plaintiff claims the defendants breached their insurance contract with him. (Id., pp.

5-6). In the “Statement of Claims” section of the complaint form where plaintiff is

directed to state what legal rights he believes have been violated, plaintiff states,

“Each person have a right to property.” (Id., p. 7). As relief, he seeks: “$12,000

payment of the claim.” (Id.).

To the extent plaintiff’s amended complaint may be construed as asserting a

§ 1983 due process claim based on an alleged constitutionally protected property

interest in the insurance contract, plaintiff’s claims must be dismissed. As discussed

in the original Report and Recommendation, 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 him of a right, privilege, or immunity secured by the Constitution

or federal law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11 Cir. 2001). th

“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. “[T]he

under-color-of-state-law element of § 1983 excludes from its reach merely private

conduct, no matter how discriminatory or 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

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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 conditionsis 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

partiesthat 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, even liberally construing plaintiff’s

allegations, they do not remotely suggest the kind of action that would subject these

private party defendants to § 1983 liability as “state actors.” 

Furthermore, the constitutional right to due process reaches only government

action. Jeffries v. Ga. Residential Fin. Auth., 678 F.2d 919, 922 (11 Cir. 1982) (“It th

is well settled that the fourteenth amendment proscription against deprivations of

property without due process of law reaches only government action and does not

inhibit the conduct of purely private persons in their ordinary activities.” (citing

Jackson v. Metro. Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452, 42 L.Ed.2d 477

(1974)). Again, liberally construing the allegations of the amended complaint, the

defendants’ actions cannot remotely be deemed “state action.” Therefore, plaintiff’s

due process claims must be dismissed. 

Because the facts as pleaded fail to state a claim to relief under federal law that

is plausible on its face, plaintiff’s federal claims must be dismissed. 

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To the extent plaintiff’s pro se amended complaint may be liberally construed

as raising breach of contract claims under state law, the court lacks jurisdiction over

this action, as plaintiff failsto establish the requirements for diversity jurisdiction, or

any other basis for this court’s jurisdiction. See 28 U.S.C. § 1332. Although a

district court may, in its discretion, exercise supplemental jurisdiction over plaintiff’s

state law claims pursuant to 28 U.S.C. § 1367(c)(3), the undersigned recommends that

the court decline to exercise such jurisdiction. See United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Raney v.

Allstate Ins. Co., 370 F.3d 1086, 1089 (11 Cir. 2004) (We have encouraged district

th

courts to dismiss any remaining state claims when, as here, the federal claims have

been dismissed prior to trial.”). 

Accordingly, it is ORDERED:

1. The original Report and Recommendation issued on April 19, 2011 (doc.

3)is VACATED, and this Amended Report and Recommendation replacesthe former

in full.

2. The Order (doc. 3) granting plaintiff’s motion to proceed in forma pauperis

REMAINS IN FULL FORCE AND EFFECT.

And it is respectfully RECOMMENDED:

1. That this action be DISMISSED as follows:

a. Plaintiff’s federal claims be DISMISSED WITH PREJUDICE

under 28 U.S.C. § 1915(e)(2)(B)(ii).

b. Plaintiff state law claims be DISMISSED WITHOUT

PREJUDICE to plaintifffiling themin the appropriate state court.

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2. That the clerk be directed to close the file.

At Pensacola, Florida this 3rd day of May, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) 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

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