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Grimes v. Kangaroo Oil & Gas

United States District Court, W.D. Louisiana, Monroe Division

October 24, 2017

JEROME L. GRIMES
v.
KANGAROO OIL & GAS

          KAREN L. HAYES MAG. JUDGE.

          RULING

          ROBERT G. JAMES UNITED STATES DISTRICT JUDGE.

         Before 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 jurisdiction.

         Plaintiff filed an objection to the Report and Recommendation on September 25, 2017. [Doc. No. 24]. Defendants did not respond to the objection.

         Having 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 allegations.

         The 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.

         [Doc. No. 23 (footnotes omitted)].

         In his 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.

         Federal 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)).

         In 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 ...


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