IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CORNELIUS PAYNE, AIS #209377,1 :

:

Plaintiff, :

 :

vs. : CIVIL ACTION 15-00354-KD-B

 :

CITY OF MOBILE POLICE :

DEPARTMENT, et al., :

 :

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Cornelius Payne, a Mobile County Metro Jail 

(“jail”) inmate proceeding pro se and in forma pauperis, filed a 

complaint seeking relief under 42 U.S.C. § 1983. This action 

has been referred to the undersigned for appropriate action 

pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 

72(a)(2)(R). After careful review of the complaint, it is 

recommended that this action be dismissed as frivolous, prior to 

service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

I. Complaint. (Doc. 1).

Plaintiff used the Court-provided form to file his § 1983 

complaint. (Doc. 1). In the space in Section III, which 

requires the plaintiff to list a defendant, Plaintiff merely 

inserted question marks in the spaces requesting the defendant’s 

 1 Plaintiff notified the Court on December 11, 2015 that he 

was transferred to Kilby Correctional Facility, P.O. Box 150, 

Mount Meigs, Alabama 36057. (Doc. 8). 

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name, position, address, and claim. (Id. at 5). As provided on 

the form, “[t]he persons who are listed as defendants in section 

III of the complaint are deemed by the court to be the only 

defendants to this action.” (Id. at 1(D)). In one space, Payne 

provides the following supporting facts: “I was taken from my 

home on 6-11-14 which was 2010 Hathcox St. Mobile Ala. 36617. 

And taken to the Mobile Police Department. The[y] placed [me] 

in jail for an assault I did not do[.]” (Id.). Instead of 

identifying a specific defendant in spaces provided for that 

purpose on the form, Payne identifies two Defendants in the 

style of the case, namely, City of Mobile Police Department and 

Fox 10 News. (Id. at 1).

In the space on the form that requires an explanation of 

the claim, Payne provided a general description, which is set 

out below in its entirety due to its brevity. 

I was arrested on 6-11-14 at 2010 

Hathcox St. Mobile Al, 36617 for Assault 1# 

degree. I was then taken to the City of 

Mobile Police Department[,] where they 

question[ed] me of my [whereabouts]. I told 

them I was home and had actual witnesses 

that could prove my [whereabouts]. But the 

detective told me that she knew I had done 

it. And told me that I would be in Jail for 

a long time. I then told her I was willing 

to take a lie detector test. She then said 

no need [as] she knew I did it[,] and I was 

taken to Jail. I was then released on 6-24-

14. 

(Id. at 4-5). For relief, Payne requests “to be compensated for 

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the los[s] of [his] job[,] pain and suffering[,] and false 

imprisonment. . . . [and] to be released on the charges [he is] 

now on.” (Id. at 7). Although Payne asserts that he was 

released, the envelope accompanying his complaint indicates he 

was a jail inmate when he filed the complaint, albeit apparently 

for a different reason. (Id. at 8).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Payne is proceeding in forma pauperis, the Court is 

reviewing his complaint (Doc. 1) under 28 U.S.C. § 1915(e)(2)(B). 

Under § 1915(e)(2)(B)(i), a claim may be dismissed as “frivolous 

where it lacks an arguable basis in law or fact.” Neitzke v. 

Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 

L.Ed.2d 338 (1989). 2 A claim is frivolous as a matter of law 

where, inter alia, the defendants are immune from suit, id. at 

327, 109 S.Ct. at 1833, or the claim seeks to enforce a right 

that clearly does not exist. Id.

Moreover, a complaint may be dismissed under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which 

relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 

(11th Cir. 1997). To avoid dismissal for failure to state a 

claim upon which relief can be granted, the allegations must 

 2 The frivolity and the failure-to-state-a-claim analysis 

contained in Neitzke was unaltered when Congress enacted 28 

U.S.C. § 1915(e)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346, 

1349 (11th Cir.), cert. denied, 534 U.S. 1044 (2001). 

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show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). “A 

claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 

L.Ed.2d 868 (2009). That is, “[f]actual allegations must be 

enough to raise a right to relief above the speculative level” 

and must be a “‘plain statement’ possess[ing] enough heft to 

‘sho[w] that the pleader is entitled to relief.’” Twombly, 550 

U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in 

original). But “[t]hreadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not 

suffice.” Id.

When considering a pro se litigant’s allegations, a court 

gives them a liberal construction holding them to a more lenient 

standard than those of an attorney, Haines v. Kerner, 404 U.S. 

519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972), but it 

does not have “license . . . to rewrite an otherwise deficient 

pleading in order to sustain an action.” GJR Investments v. 

County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), 

overruled on other grounds by Randall v. Scott, 610 F.3d 791, 

710 (11th Cir. 2010) (relying on Iqbal, 556 U.S. 662, 129 S.Ct. 

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1937). Furthermore, a court treats as true factual allegations, 

but it does not treat as true conclusory assertions or a 

recitation of a cause of action’s elements. Iqbal, 566 U.S. at 

681, 129 S.Ct. at 1951. In addition, a pro se litigant “is 

subject to the relevant law and rules of court including the 

Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 

835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).

III. Discussion.

A. Requirements for Stating a § 1983 Claim.

In order to state a claim under § 1983, a plaintiff must 

show: “(1) . . . the conduct complained of was committed by a 

person acting under color of state law; and (2) . . . this 

conduct deprived [the plaintiff] of rights, privileges, or 

immunities secured by the Constitution or laws of the United 

States.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 

1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by

Daniels v. Williams, 474 U.S. 327, 330-31 (1986). A § 1983 

plaintiff must also causally connect a defendant’s actions, 

omissions, customs, or policies to a deprivation of his 

constitutional rights in order to state a claim under § 1983. 

Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). These 

basic requirements for stating a viable § 1983 claim are not 

satisfied by Payne’s allegations due to the nature of the 

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entities named as Defendants. 

B. Defendant City of Mobile Police Department. 

“Sheriff’s departments and police departments are not 

usually considered legal entities subject to suit.” Dean v. 

Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). The capacity of a 

party to be sued is “determined by the law of the state in which 

the district court is held.” FED.R.CIV.P. 17(b); see Dean, 951 

F.2d at 1214 (dismissing an Alabama’s sheriff’s department

because it is not an entity subject to suit); see Robinson v. 

Hogansville Police Dep’t, 159 F. App’x 137, 138 (11th Cir. 2005) 

(unpublished) (reaffirming Dean, supra, with respect to a 

Georgia city police department).3

Likewise, in Alabama, a city’s police department is not a 

suable entity or a proper party under state law or for § 1983 

purposes. Howard v. City of Demopolis, Ala., 984 F. Supp.2d 

1245, 1253 (S.D. Ala. 2013) (DuBose, J.); Hawkins v. City of 

Greenville, 101 F. Supp.2d 1356, 1363 (M.D. Ala. 2000); see Mann

v. Hillsborough Cnty. Sheriff’s Office, 946 F. Supp. 962, 970-71 

(M.D. Fla. 1996) (“[T]he police department is the vehicle 

through which the city fulfills its policing functions[, and,]

[t]herefore, the Florida courts have found that the city police 

 3 “Unpublished opinions are not considered binding precedent, 

but they may be cited as persuasive authority.” 11TH CIR. R. 36-2

(2005).

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department is not a legal entity and has no legal existence 

separate and apart from the city.”); Eddy v. Miami, 715 F. Supp. 

1553, 1556 (S.D. Fla. 1989) (same); Reese v. Chicago Police 

Dep’t, 602 F. Supp. 441, 443 (N.D. Ill. 1984) (same). 

Inasmuch as Defendant City of Mobile Police Department is 

not a suable entity under Alabama law, the claim against 

Defendant City of Mobile Police Department is frivolous as a 

matter of law and is due to be dismissed.

C. Defendant Fox 10 News.

Turning to the other Defendant, Fox 10 News, this entity 

is considered a private party that does not typically act under 

color of state law. However, to state a claim under § 1983, a 

plaintiff must establish that he was deprived of a 

constitutional right and “that the alleged deprivation was 

committed under color of state law. . . .[This] under-color-ofstate-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, 49-50, 

119 S.Ct. 977, 984, 143 L.Ed.2d 130 (1999)(quoting Blum v. 

Yaretsky, 457 U.S. 991, 1002, 73 L.Ed.2d 534 (1982) (quotation 

omitted); see Parratt, 451 U.S. at 535, 101 S.Ct. at 1913

(same). Therefore, to determine if a private party acts under 

color of state law, the United States Supreme Court uses three 

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tests: 

1) the public function test; (2) the 

state compulsion test; and (3) the 

nexus/joint action test. National 

Broadcasting Co., Inc. v. Communication 

Workers of America, AFL-CIO, 860 F.2d 

1022, 1026 (11th Cir. 1988) (footnote 

omitted). The public function test 

limits state action to instances where 

private actors are performing functions 

“traditionally the exclusive 

prerogative of the state.” NBC, 860 

F.2d at 1026 (citations omitted). The 

state compulsion test limits state 

action to instances where the 

government “has coerced or at least 

significantly encouraged the action 

alleged to violate the Constitution.” 

NBC, 860 F.2d at 1026 (citations 

omitted). The nexus/joint action test 

applies where “the state has so far 

insinuated itself into a position of 

interdependence with the [private 

party] that it was a joint participant 

in the enterprise.” NBC, 860 F.2d at 

1026-27 (citations omitted).

Willis v. University Health Servs., Inc., 993 F.2d 837, 840 

(11th Cir.), cert. denied, 510 U.S. 976 (1993). “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).

In the present action, Payne’s allegations contain no 

information that is consistent with an entity that is involved 

with the media. Furthermore, Payne’s allegations do not 

demonstrate that Defendant Fox 10 News acted under color of 

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state law because no allegations are present indicating that it 

performed a traditional state function, that it was coerced by 

the state, or that it was a joint participant with the state in 

business. Thus, the Court concludes that Defendant Fox 10 News 

is not a state actor, and Payne’s claim against Defendant Fox 10 

News lacks an arguable basis in law and is, therefore, due to be 

dismissed as frivolous pursuant 28 U.S.C. § 1915(e)(2)(B)(i). 

Anderson v. Suiters, 499 F.3d 1228, 1233-34 (10th Cir. 2007) 

(finding the television news reporter and the company that owns 

the television station were not state actors); Nichols v. 

Hendrix, No.CIV 2:98-CV-161-WCO, 1999 WL 727233, at *2 (N.D. Ga. 

1999) (unpublished) (finding that the media defendants did not 

act under color of state law); Williams v. Savannah Morning 

News, No. CV407-066, 2007 WL 2302327, at *1 (S.D. Ga. 2007) 

(unpublished) (finding a newspaper is not a state actor and 

cannot be liable for publishing the news, and noting that a 

defamation claim is not recognized under 42 U.S.C. § 1983).

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that 

this action be dismissed as frivolous, prior to service of 

process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). 

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

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all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 17th day of December, 2015.

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 /s/ Sonja F. Bivins a 

UNITED STATES MAGISTRATE JUDGE

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