IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JANICE C. BURRELL, )

 )

Plaintiffs, )

)

vs. ) CIVIL ACTION 09-00325-KD-B

 )

INFIRMARY WEST, )

)

Defendant. )

REPORT AND RECOMMENDATION

This case is before the Court on Defendant Infirmary West’s

Motion to Dismiss or Alternative Motion for a More Definite

Statement and Supporting Memorandum. (Docs. 8, 9). Defendant’s

Motion and supporting Brief have been referred to the undersigned

for a report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B). Based upon a careful review of Defendant’s Motion

and Memorandum, Plaintiff’s Objection, brief and Amended Complaint

(Docs. 16, 17, 18) and the pleadings on file, the undersigned

recommends that Plaintiff’s Amended Complaint be allowed, that

Defendant’s Motion to Dismiss be granted in part, and denied in

part, and that Plaintiff’s claims alleging violations under Title

18 U.S.C. §§ 241 and 242, Title 42 U.S.C. § 1985(2) and (3), and

the First, Fifth, and Fourteenth Amendments be dismissed.

I. Background

Plaintiff Janice C. Burrell, proceeding pro se, filed the

instant action against Infirmary West on June 8, 2009, alleging

employment discrimination, improper dismissal, and unfair treatment

in employment under “Title 18, 241, 242, 5th and 14th Amendments,

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Article 1, Section 10.” (Doc. 1). Along with her Complaint,

Plaintiff filed a document entitled “Statement of Facts,” which

includes various factual allegations. (Doc. 1). According to

Plaintiff, her boss, Mr. Gary Bartlett, subjected her to disparate

treatment because of her race. She also alleges that Mr. Bartlett

was upset because he felt she took too much time off of work after

she sought to take vacation following six weeks of FMLA leave, and

that he deprived her of her right to seek benefits under COBRA.

(Doc. 1).

In seeking the dismissal of Plaintiff’s Complaint, Defendant

argues that Plaintiff’s reliance on 18 U.S. C. §§ 241 and 242 is

improper because these are criminal statutes which do not provide

a private civil right of action. Defendant further asserts that

Plaintiff’s claims under the Fifth and Fourteenth Amendment fail to

state a cause of action because Plaintiff has not alleged that any

of the conduct of which she complains involved “state action.” In

addition, Defendant asserts that while Plaintiff references EEOC,

COBRA, and FMLA, her complaint “is shotgun at best, confusing and

virtually impossible to respond to in a meaningful manner.” (Doc.

9).

In response to Defendant’s motion, Plaintiff filed an

objection, a brief, and an amended complaint. (Docs. 16, 17, 18).

In Plaintiff’s Objection, she asserts that “Plaintiff intends to

prove that there were communication between the three parties:

Infirmary West, EEOC and USACW to extent the discrimination on my

new job causing termination before EEOC informed me of my option to

go to Court.” (Doc. 17, p. 2). Plaintiff then sets forth various

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While Plaintiff alleges improper conduct by EEOC and USA

Children and Women’s Hospital, neither is a party to this action.

To the extent Plaintiff desires to assert claims against these

entities, she must file a separate lawsuit as her claims

regarding those entities are wholly separate and distinct from

those she has asserted against Infirmary West.

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factual allegations in support of her discrimination, COBRA and FMLA

claims. Plaintiff also references 42 U.S.C. § 1985(2) and (3), and

contends that “[a] private person acts under color of law and may

be liable under Sec. 1983 for participation with a state or local

government official for to violate a plaintiff’s 14th Amendment

rights. Infirmary West (private institution) and EEOC (government

official) worked together violating my 14th Amendment ... EEOC

investigation was unjust and in favor of the defendant. The 18th

U.S.C. Sec. 241, 241 also apply to conspiracy to deprive individuals

of constitutional rights and constitutional rights under color of

law.” (Doc. 17, p. 4). 

In her Amended Complaint (Doc. 18), Plaintiff alleges that she

was disciplined because of her race, that she was terminated because

she took FLMA leave, and then sought to take vacation soon

thereafter, and that Defendant violated her rights to continue her

insurance through COBRA. Plaintiff also alleges that EEOC conducted

an inadequate investigation and that following her termination by

Defendant, she was hired by nonparty, USA Women and Children’s

Hospital, and was subjected to unfair treatment1. 

In Defendant’s reply, Defendant observes that while it is not

clear if Plaintiff had the right, as a matter of course, to file an

amended complaint at the time that she filed her Amended Complaint

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in this action, Defendant does not object to Plaintiff being

permitted to file her Amended Complaint. Defendant asserts that

notwithstanding the Amended Complaint, Plaintiff has still failed

to correct some of the deficiencies raised in Defendant’s motion.

According to Defendant, Plaintiff’s claims alleging violations of

18 U.S. C. §§ 241 and 242 are improper because these are criminal

statutes, which do not provide a private civil right of action, and

her claims under the First, Fifth, and Fourteenth Amendments are not

actionable because no state action is alleged. Defendant also

asserts that to the extent Plaintiff is seeking to raise a

conspiracy claim under 42 U.S.C. § 1985, she has failed to do so.

Defendant contends that Plaintiff’s Complaint fails to assert

allegations supporting an “injury to any right she possesses,” and

also fails to allege that Defendant took any actions in connection

with the EEOC investigation that it did not have the right to engage

in. Defendant further contends that Plaintiff has not “alleged any

facts which would support a finding the Defendant was acting as a

agent of the [state or government.]” (Docs. 9, 20). 

II. Discussion

A. Legal Standard

Rule 15(a) of the Federal Rules of Civil Procedure provides

that a party may amend its pleading once as a matter of course A)

twenty-one days after serving it, or B) if the pleading is one to

which a responsive pleading is required, 21 days after service of

a responsive pleading or 21 days afer service of a motion under Rule

12(b), (e) or (f), whichever is earlier. Fed.R.Civ.P. 15(a). In

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the instant case, Plaintiff’s Complaint was filed on June 8, 2009,

Defendant’s Motion to Dismiss was filed on December 7, 2009, and

Plaintiff’s Amended Compliant was filed twenty-nine (29) days

later, on January 5, 2010. Thus, at the time Plaintiff filed her

Amended Complaint, she no longer had the right to amend her

Complaint absent Defendant’s consent, or permission from the Court.

Fed.R.Civ.P. 15(a)(1)and (2). 

Notwithstanding, Rule 15(a)(2) of the Federal Rules of Civil

Procedure provides that “the court should freely give leave [to

amend a pleading] when justice so requires.” Fed. R. Civ. P.

15(a)(2). A district court should not deny leave to amend “[u]nless

there is a substantial reason.” Burger King Corp. v. Weaver, 169

F.3d 1310, 1319 (llth Cir. 1999). A motion to amend may however be

denied on “numerous grounds, such as undue delay, undue prejudice

to the defendants, and futility of the amendment.” Carruthers v.

BSA Adver., Inc., 357 F.3d 1213, 1218 (llth Cir. 2004)(citation

omitted.). As noted supra, Defendant has stated that it does not

object to Plaintiff being allowed to amend her Complaint as the

Amended Complaint cures some of the deficiencies outlined in

Defendant’s Motion. Based upon a review of Plaintiff’s Complaint,

Amended Complaint, and the record, the undersigned finds that

although Plaintiff did not seek leave before filing her Amended

Complaint, good cause exists for allowing the amendment as it

clarifies the basis for some of Plaintiff’s claims. Accordingly,

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the undersigned recommends that Plaintiff’s Amended Complaint be

allowed.

Turning next to Defendant’s Motion to Dismiss, the undersigned

observes that in considering a Rule 12(b)(6) motion to dismiss, the

court accepts the non-moving party’s allegations as true; however,

the court is not required to accept a plaintiff's legal conclusions.

Ashcroft v. Iqbal, 556 U.S. --,129 S. Ct. 1937, 1949, 173 L. Ed. 2d

868 (2009) (noting "the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal

conclusions"). In evaluating the sufficiency of a plaintiff's

pleadings, the court makes reasonable inferences in the plaintiff's

favor, "but [is] not required to draw Plaintiff's inference."

Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248

(11th Cir. 2005). Similarly, "unwarranted deductions of fact" in a

complaint are not admitted as true for the purpose of testing the

sufficiency of plaintiff's allegations. Id.; see also Iqbal, 129 S.

Ct. at 1951 (stating conclusory allegations are "not entitled to be

assumed true").

In Iqbal, the Supreme Court reiterated that although Rule 8 of

the Federal Rules of Civil Procedure does not require detailed

factual allegations, it does demand "more than an unadorned,

the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct.

at 1949. A complaint must state a plausible claim for relief, and

"[a] claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged." Id. The mere

possibility the defendant acted unlawfully is insufficient to

survive a motion to dismiss. Id. The well-pled allegations must

nudge the claim "across the line from conceivable to plausible."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167

L. Ed. 2d 929 (2007).

The Court recognizes Plaintiff’s pro se status and the fact

that the allegations of a pro se complaint, “however inartfully

pleaded” are held “to less stringent standards than formal pleadings

drafted by lawyers....” Haines v. Kerner, 404 U.S. 519, 520, 92 S.

Ct. 594, 595, 30 L. Ed. 2d 652 (1972). However, Plaintiff’s pro se

status does not excuse her from compliance with applicable

procedural rules, including the Rule 8 pleading requirement. See

Local Rule 83.9(b)(“All litigants proceeding pro se shall be bound

by and comply with all local rules of this Court, and the Federal

Rules of Civil and Criminal Procedure, unless otherwise excused from

operation of the rules by court order.”); Moon v. Newsome, 863 F.

2d 835, 837 (llth Cir. 1989)(a pro se litigant “is subject to the

relevant law and rules of court, including the Federal Rules of

Civil Procedure”). Additionally, the leniency afforded pro se

litigants does not give the courts a license to serve as de facto

counsel for such litigants. See GJR Invs., Inc. v. County of

Escambia, Fla., 132 F.3d 1359, 1369 (llth Cir. 1998).

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B. Defendant’s Contentions

In this case, Defendant contends that Plaintiff’s claims

alleging violations of 18 U.S. C. §§ 241 and 242 are improper

because these are criminal statutes which do not provide a private

civil right of action, and that her claims under the First, Fifth

and Fourteenth Amendments are not actionable because no state action

is alleged. Under 18 U.S.C. § 241, individuals who conspire to

"injure, oppress, threaten, or intimidate" another person's "free

exercise or enjoyment of any right or privilege secured to him by

the Constitution" shall be fined, or imprisoned, or both. In

addition, under 18 U.S.C. § 242, any individual, who, while acting

under color of any law, willfully deprives a person of his

constitutional rights based upon that person's race shall be fined,

or imprisoned, or both. O’Berry v. State Attorney’s Office, 241

Fed. Appx. 654, 657 (llth Cir. 2007)(quoting § 241 and 242). See

also Thibeaux v. United States Atty Gen., 275 Fed. Appx. 889, 892

(llth Cir. 2008). Plaintiff may not force prosecutors to institute

a criminal prosecution against Defendant pursuant to §§ 241 and 242.

Nor do these statutes give rise to civil liability. Because these

statutes do not form a proper basis for Plaintiff’s claims,

Plaintiff’s claims based on these statutes should therefore be

dismissed. See Grant v. Parker, 2008 U.S. Dist. LEXIS 22181 (M.D.

Fla. Mar. 29, 2008).

In Plaintiff’s brief, she alleges a conspiracy under 1985(2)

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and (3) between Defendant and EEOC; however, her Amended Complaint

makes no mention of either a conspiracy nor 1985(2) and (3).

Assuming arguendo that Plaintiff has asserted a conspiracy claim,

the claim is due to be dismissed because she has failed to state a

claim. 42 U.S.C. § 1985(2) has two parts. The first part of §

1985(2) prohibits, in relevant part, two or more persons from

conspiring:

 to deter, by force, intimidation, or threat, any

 party or witness in any court of the United

 States from attending such court, or from 

 testifying to any matter pending therein, freely,

 fully, and truthfully, or to injure such party or

 witness in his person or property on account of his

 having so attended or testified . . .

Id. The second part of § 1985(2) prohibits two or more persons from

conspiring:

for the purpose of impeding, hindering, 

 obstructing, or defeating, in any manner, the

 due course of justice in any State or Territory,

with intent to deny to any citizen the equal 

protection of the laws, or to injure him or his

property for lawfully enforcing, or attempting to 

enforce, the right of any person or class of persons,

to the equal protection of the laws . . .

Id.

 A conspiracy to interfere with civil rights is actionable under

42 U.S.C. § 1985 (3) where two or more persons conspire "for the

purpose of depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws, or equal

privileges and immunities under the laws . . . ." 42 U.S.C. §

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1985(3). In order to state a cognizable § 1985(3) conspiracy claim,

a plaintiff must plead four elements: 

 (1) a conspiracy; (2) for the purpose of depriving,

either directly in directly, any person or class of 

persons of the equal protection of the laws, or

of equal privileges and immunities under the laws; 

(3) an act in furtherance of the conspiracy; 

(4) whereby a person is either injured in his 

person or property or deprived of any right or 

privilege of a citizen of the United States.

Trawinski v. United Techs., 313 F.3d 1295, 1299 (11th Cir. 2002).

42 U.S.C. § 1985(2), (3).

The principal elements of conspiracy are an "agreement between

parties to inflict a wrong against or injury upon another, and an

overt act that results in that damage." Northrup v. Conseco Fin.

Corp., 141 F. Supp. 2d 1372, 1375 (M.D. Ga. 2001). The Eleventh

Circuit requires a heightened pleading standard in conspiracy cases

because a defendant must be informed of the nature of the conspiracy

alleged. Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).

"It is not enough to simply aver in the complaint that a conspiracy

existed." Id. Thus, conclusory, vague, and general allegations of

conspiracy may justify dismissal of a complaint. Id.

As noted supra, Plaintiff’s Amended Complaint does not allege

a conspiracy, nor does it reference § 1985(2) or (3). While

Plaintiff references these provisions in her brief, her conspiracy

allegations are not sufficient even if they had been included in her

Amended Complaint. First of all, § 1985(2) requires the existence

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of a federal legal proceeding; however, Plaintiff has not alleged

that Defendant conspired against her in connection with a federal

legal proceeding. Thus, she has failed to make out a claim under

§ 1985 (2). Foster v. Pall Aeropower Corp., 111 F. Supp. 2d 1320,

1323 (M.D. Fla. 2000) (Section 1985(2) does not afford protection

against conspiracies to obstruct justice in administrative

proceedings, even obstructions occurring in federal agencies such

as the Office of the Comptroller of the Currency (OCC) and the Equal

Employment Opportunity Commission (EEOC)). Moreover, Plaintiff has

failed to state a claim under § 1985(3) because her conclusory

allegation that Defendant and EEOC worked together to violate her

rights under the Fourteenth Amendment does not sufficiently describe

the nature of the alleged conspiracy. Such conclosory, vague

allegations are simply not sufficient to state a conspiracy claim

under § 1985. Fullman, 739 F.2d at 557; Shell v. United States HUD,

2009 U.S. App. Lexis 26226 (llth Cir. Dec. 2, 2009)(bare assertions

that a conspiracy occurred is not sufficient to state a claim). 

Plaintiff’s claims alleging violations of the First, Fifth and

Fourteenth Amendments must likewise fail. The First Amendment

prohibits governmental, not private, infringement of free speech.

Hudgens v. NLRB, 424 U.S. 507, 513, 96 S. Ct. 1029, 47 L.Ed. 2d 196

(1976). "The Fifth Amendment of the United States Constitution

restrains the federal government, and the Fourteenth Amendment,

Section 1, restrains the states from depriving any person of life,

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liberty, or property without the due process of law.” Buxton v.

Plant City, 871 F.2d 1037, 1041 (11th Cir. 1989). The Eleventh

Circuit has utilized three tests for establishing whether the

actions of a private entity are attributable to the state: the

public function test, the state compulsion test, and the nexus/joint

action test. Focus on the Family v. Pinellas Suncoast Transit Auth.,

344 F.3d 1263, 1277 (11th Cir. 2003)(citing Willis v. Univ. Health

Servs., Inc., 993 F.2d 837, 840 (11th Cir. 1993)). The public

function test is satisfied when private actors perform a function

that is “‘traditionally the exclusive prerogative of the state.’”

Id. (citation omitted). The state compulsion test limits state

action to instances when the government has coerced or at least

significantly encouraged the acts alleged to be unconstitutional.

Id. The nexus/joint action test is met when the state and the

private party are in such a position of interdependence that the

alleged conduct constitutes a joint action. Id.

In Plaintiff’s Amended Complaint, Plaintiff has not alleged

that Infirmary West is a government agency, and there is nothing in

the record to suggest such. Moreover, Plaintiff has not alleged any

facts that would establish state action by Infirmary West under any

of the three tests used by this Circuit. Accordingly, even

accepting all of Plaintiff’s allegations as true, she has failed to

allege a set of facts upon which relief can be granted because she

has not demonstrated how any deprivation of an alleged

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constitutional right constituted “state action.” Thus, her claims

under the First, Fifth, and Fourteenth Amendments are due to be

dismissed.

III. Conclusion

For the reasons set forth herein, the undersigned recommends

that Plaintiff’s Amended Complaint be allowed, that Defendant’s

Motion to Dismiss be granted in part, and denied in part, and that

Plaintiff’s claims alleging violations under Title 18 U.S.C. §§ 241

and 242, Title 42 U.S.C. § 1985(2) and (3), and the First, Fifth,

and Fourteenth Amendments be dismissed.

The attached sheet contains important information regarding

 objections to this Report and Recommendation.

DONE this 11th day of February, 2010.

 /s/SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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