IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EDWARD JENNINGS, #164258, :

Plaintiff, :

vs. : CIVIL ACTION 14-0388-CB-M

ALPHONSE A. CHESTANG, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and 

in forma pauperis, filed a Complaint 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 Local Rule 

72.2(c)(4). It is recommended that this action be dismissed 

without prejudice, prior to service of process, pursuant to 28 

U.S.C. § 1915(e)(2)(B)(i).

I. Second Amended Complaint. (Doc. 7).1

In the Second Amended Complaint, Plaintiff names as 

Defendants Christine Frack, Director of Hotel Sales for Ashbury 

Suites, and Ashbury Suites/Levis Hotels LLC. (Doc. 7 at 4-5). 

Plaintiff’s allegations against Defendants are as follows. 

 1 Plaintiff was ordered to file a Second amended Complaint, 

which he was warned would supersede his original Complaint and 

First Amended Complaint. See Doc. 2 at 1; Doc. 6 at 1.

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While Plaintiff was at Mobile Work Release, he was employed at 

Ashbury Suites, 600 W I-65 Service Road, Mobile, Alabama. (Id.

at 4). Plaintiff was fired from his job there on the word of

Defendant Frack, “who called the work center and told them [that 

he] texted her for picture of herself.” (Id. at 4-5). 

Plaintiff claims that this information was false and that he was 

fired without a reason. (Id. at 4). 

On July 21, 2014, Sgt. Jeffery Jackson wrote plaintiff a 

disciplinary. (Id.). The hearing officer, Officer Alphonse A. 

Chestang, found Plaintiff guilty based on Sgt. Jackson’s word, 

which was given without an investigation being conducted or, at 

least, an adequate investigation. (Id.). As a result, 

Plaintiff lost his job, visitation privileges, and custody. 

(Id.). However, ten days later, Warden Sharon Folks, the 

warden/designee at the Mobile Work Center, found Plaintiff not 

guilty. (Id. at 5). The warden indicated that Plaintiff “was

terminated under false preten[ses].” (Id.).2 Subsequently, 

Plaintiff was transferred to Decatur Work Center with no reason 

being given. (Id.). Plaintiff claims that he lost pay for two 

weeks and will have this false work history information wherever 

 2 Attached to the original Complaint is a copy of the 

disciplinary report. (Doc. 1 at 14-16). And attached to the 

First Amended Complaint is a copy of a moneygram transaction 

that Defendant Frack received from Plaintiff. (Doc. 3 at 3-4).

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he goes. (Id.). 

Plaintiff states that “he only seek[s] to make claims from 

the defendant Ms[.] Frack and her employe[r] []Ashbury Suites 

d/b/a/ Levis Hotels LLC[.]” (Id. at 5). Officer Chestang, Sgt. 

Jackson, and Warden Folks are identified as only witnesses. 

(Id.). 

For relief, Plaintiff seeks compensatory damages from 

Defendant Frack, in her personal capacity, in the amount of 

$500,000.00 for defamation, firing him under false pretenses, 

mental anguish, and lost compensation, and from Defendant 

Ashbury Suites/Levis Hotels LLC in the amount of $2,500,000.00 

“for allowing [Defendant Frack] to fire him without [a] claim 

thru EEOC and not paying him for the two week[s] lost[]” and for 

“mental pay.” (Id.). 

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

Because Plaintiff is proceeding in forma pauperis, the 

Court is reviewing the Second Amended Complaint (Doc. 7) 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 (1989).3

 3

 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). However, 

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A claim is frivolous as a matter of law where, inter alia, the 

defendants are immune from suit, id. at 327, 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 show 

plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 

(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

(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 

(second brackets in original). However, “[t]hreadbare recitals 

of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

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

 

dismissal is now mandatory under § 1915(e)(2)(B). Id. at 1348-

49.

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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 (1972). However, a court does not have “license . . . 

to rewrite an otherwise deficient pleading [by a pro se

litigant] 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 Iqbal, 129 S.Ct. 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, 556 U.S. at 681. And 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.

Plaintiff filed the present action under 42 U.S.C. § 1983 

against Defendants Christine Frack and Ashbury Suites/Levis 

Hotels LLC. In the Second Amended Complaint, the allegations 

show these Defendants do not act under color of state law. 

However, to state a claim under § 1983, a plaintiff must 

establish that he was “deprived of a right secured by the 

Constitution or laws of the United States, and that the alleged 

deprivation was committed under color of state law. . . .[This]

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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, 49-50, 119 S.Ct. 977, 984, 143 L.Ed.2d 130 

(1999)(quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 

2777, 73 L.Ed.2d 534 (1982) (quotation omitted).

It is therefore incumbent on Plaintiff to establish:

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

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

deprived [him] 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). To determine if a private party acts 

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

three 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 

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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.3d 1127, 

1130 (11th Cir. 1992).

In the present action, no specific allegations were made 

that Defendants act under color of state law, nor do Defendants

appear to be typical state actors. Moreover, Plaintiff’s 

allegations do not demonstrate that Defendants acted under color 

of state law because there are no allegations indicating that 

they performed a traditional state function, that they were 

coerced by the state, or that they were joint participants with 

the state in business. Thus, the Court finds that neither 

Defendant Frack nor Defendant Ashbury Suites/Levis Hotels LLC is 

a state actor. 

Consequently, the conduct about which Plaintiff complains 

with respect to these Defendants was not committed by a person 

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or an entity acting under color of state law and cannot be 

considered state action. Accordingly, the Court concludes that 

Plaintiff’s action 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). See Fuller v. Gates, No. 6:13-cv-01766-RDPSGC, 2015 WL 854478, at *9-10(N.D. Ala. Feb. 27, 

2015)(unpublished)(finding that Platinum Homes, Lamb Motors, and 

their employees were private entities and not state actors with 

respect to the work-release plaintiff’s claim); Eatmon v. 

Pilgrim Pride Chicken Plant, CA No. 1:11-CV-1002-TMH, 2012 WL 

1319537, at *1 (M.D. Ala. Mar. 20, 2012) (unpublished) (finding 

that the work release inmate’s claims against his employer, 

Pilgrim Pride, and his supervisor at Pilgrim Pride were 

frivolous because these Defendants did not act under color of 

state law).4 

 4

 An alternate basis on which to dismiss this action is 42 

U.S.C. § 1997e(e). Plaintiff did not allege a physical injury 

that is connected to the allegations, and he seeks $500,000.00 

from one Defendant and $2,500,000.00 from the other Defendant.

(Doc. 5-1 at 3). Section 1997e(e), which is entitled 

“Limitation on recovery,” provides: “No Federal civil action may 

be brought by a prisoner confined in a jail, prison, or other 

correctional facility, for mental or emotional injury suffered 

while in custody without a prior showing of physical injury.” 

42 U.S.C § 1997e(e). This section prevents the recovery of 

compensatory and punitive damages by an inmate when no physical 

injury is alleged. Al-Amin v. Smith, 637 F.3d 1192,1193 (11th 

Cir. 2011). Plaintiff’s damages request falls within this

category, as he identifies his damages request as being for 

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IV. Conclusion.

Based upon the foregoing reasons, it is recommended that 

this action be dismissed with prejudice, prior to service of 

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

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

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 precedent, 

“the failure to object limits the scope of [] appellate review 

to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir.

2013). In order to be specific, an objection must identify the 

 

compensatory damages and recovery for, inter alia, “mental 

injury,” with no physical being alleged. Due to the large size 

of his damages request, his damages request cannot be considered 

nominal. See Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 

1042, 1053-54, 55 L.Ed.2d 252 (1978) (holding nominal damages 

should not exceed one dollar); In re Bayside Prison Litigation,

CA 09–2365(RBS/JS), 2010 WL 4916716, at *4 (D.N.J. Nov. 23, 

2010) (unpublished) (finding that “$2,000.00 surely surpasses 

the limit of what constitutes a ‘minimal’ amount of compensation 

by any definition of the term ‘nominal’”). This action is, 

therefore, subject to dismissal on the alternate ground of 42 

U.S.C.§ 1997e(e). 

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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 9th day of March, 2015. 

s/ Bert W. Milling, Jr.

UNITED STATES MAGISTRATE JUDGE

I

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