United States District Court, W.D. Louisiana, Monroe Division
JEROME L. GRIMES
KANGAROO OIL & GAS
L. HAYES MAG. JUDGE.
G. JAMES UNITED STATES DISTRICT JUDGE.
the Court is a Complaint [Doc. No. 1] filed by Plaintiff
Jerome L. Grimes. On September 12, 2017, Magistrate Judge
Hayes issued a Report and Recommendation [Doc. No. 23] in
which she recommended that the Court dismiss Plaintiff's
Complaint without prejudice for lack of subject matter
filed an objection to the Report and Recommendation on
September 25, 2017. [Doc. No. 24]. Defendants did not respond
to the objection.
independently reviewed the entire record, including
Plaintiff's objection, the Court concurs with the
Magistrate Judge's findings and ADOPTS the Report and
Recommendation. The Court issues this Ruling to address
Plaintiff's objection, which purports to assert new
Magistrate Judge recommended dismissal because, in part,
Plaintiff failed to plead a colorable federal question claim:
First, plaintiff does not actually cite a federal statute,
but only parts of statutes, e.g., “U.S.C. 28, ”
and “U.S.C. 42.” Moreover, although plaintiff
alleged that defendants transgressed his myriad
constitutional rights, violations of constitutional rights
are not redressable directly. Rather, plaintiff must pursue
constitutional claims through 42 U.S.C. § 1983.
Coleman v. Mississippi Dep't of Marine Res.,
16-0289, 2016 WL 5794772, at *2 (S.D.Miss. Oct. 4, 2016)
(citations omitted). Here, plaintiff did not invoke §
1983; thus, his constitutional claims are subject to
dismissal. Burns-Toole v. Byrne, 11 F.3d 1270, 1273
n.3 (5th Cir. 1994); Mitchell v. City of Houston,
Tex., 57 Fed.Appx. 211 (5th Cir. 2003).
However, even if plaintiff had invoked § 1983,
his complaint(s) remains deficient. “To state a claim
under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” Cornish v. Correctional Servs. Corp.,
402 F.3d 545, 549 (5th Cir. 2005) (emphasis added).
To constitute state action, “the deprivation must be
caused by the exercise of some right or privilege created by
the State . . . or by a person for whom the State is
responsible, ” and “the party charged with the
deprivation must be a person who may fairly be said to be a
state actor.” Lugar v. Edmondson Oil Co., 457
U.S. 922, 936 n. 18 (1982). In general, the state does not
have a constitutional duty to protect individuals from
private harm. Priester v. Lowndes County, 354 F.3d
414, 421 (5th Cir. 2004). Moreover, private entities are not
generally considered state actors. Meade v. Dillard Dept.
Stores, 275 F.3d 43, 43 (5th Cir. 2001). Traditionally,
“acting under color of state law requires that the
defendant in a § 1983 action have exercised power
‘possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law.'” West v. Atkins, 487 U.S. 42,
49 (1988) (citing United States v. Classic, 313 U.S.
299, 326 (1941)).
Defendants constitute a private company and individuals - not
state actors under § 1983. Plaintiff's complaint is
devoid of any factual allegations to suggest that
defendants' conduct can be attributed to the State, or
that the State encouraged, participated, or otherwise coerced
defendants' actions. Thus, he has not asserted a
colorable non-frivolous federal claim that would support the
exercise of federal question jurisdiction.
No. 23 (footnotes omitted)].
objection, Plaintiff essentially alleges that a state actor,
Officer Timothy Stephens, acted in concert with Defendants to
conceal video evidence. While Plaintiff does not move for
leave to amend his Complaint to include this ostensible new
allegation, the Court will nevertheless construe the
allegation as a motion for leave to amend.
Rule of Civil Procedure 15(a)(2) provides that leave to amend
shall be “freely [granted] when justice so
requires.” Fed.R.Civ.p. 15(a)(2). “‘Whether
leave to amend should be granted is entrusted to the sound
discretion of the district court . . . .'”
Quintanilla v. Texas Television Inc., 139 F.3d 494,
499 (5th Cir. 1998) (quoted source omitted). Yet, “[i]n
the context of motions to amend pleadings,
‘discretion' may be misleading, because
Fed.R.Civ.p. 15(a) ‘evinces a bias in favor of granting
leave to amend.'” Martin's Herend Imp. v.
Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765,
770 (5th Cir. 1999) (quoting Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 597 (5th Cir. 1981)).
deciding whether to grant leave, courts consider: (1) undue
delay; (2) bad faith or dilatory motive; (3) repeated failure
to cure deficiencies by previous amendments; (4) undue
prejudice to the opposing party; and (5) futility of
amendment. Rosenzweig v. Azurix Corp.,332 F.3d 854,
864 (5th Cir. 2003) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). Absent any of these factors, leave ...