United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
a non-prisoner, has been given leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an initial
review of Plaintiff's claims to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
brings this 42 U.S.C. § 1983 action against his manager
at Sonic Drive-In for “Racial prejudice and religion
prejudice. Plus making death threats towards everyone.”
(Filing 1 at CM/ECF p. 3.) Plaintiff alleges that his manager
calls him and other crew members “jews”; calls
him a “retarded nigger”; and makes “sexual
slurs towards other crew members.” (Filing 1 at CM/ECF
STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
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.” West v. Atkins, 487
U.S. 42, 48 (1988). “[T]he under-color-of-state-law
element of § 1983 excludes from its reach ‘merely
private conduct, no matter how discriminatory or
wrongful.'” Americans United for Separation of
Church & State v. Prison Fellowship Ministries,
Inc., 509 F.3d 406, 421 (8th Cir. 2007) (quoting Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999)). Sometimes private persons-like the Defendant
here-can be liable under section 1983 when the private party
is a “willful participant[s] in joint action with the
State or its agents.” Dennis v. Sparks, 449
U.S. 24, 27 (1980).
Plaintiff's purported section 1983 claim against the
manager of his private place of employment is not cognizable
because Plaintiff's manager is not a state actor, nor has
Plaintiff alleged that his manager was engaged in joint
action with the state or its agents such that his
manager's actions can be characterized as actions of the
state. See Alexis v. McDonald's Restaurants of
Massachusetts, Inc., 67 F.3d 341, 352 (1st Cir. 1995)
(private restaurant manager not liable under § 1983 when
there was no evidence that manager and police officer had
“any understanding, tacit or explicit, to deprive [the
plaintiff] of any right secured by the Constitution or laws
of the United States”); Smith v. Dollar Gen.
Store, No. 1:18-CV-179, 2019 WL 148657, at *3 (E.D.
Tenn. Jan. 9, 2019) (plaintiff failed to state § 1983
claim against store manager when plaintiff did not allege
that manager conspired with state actor); Carroll v. City
of New Brunswick, No. CIV.A. 10-170 MLC, 2015 WL 519211,
at *1 (D.N.J. Feb. 9, 2015) (unpublished) (plaintiff was
barred from asserting § 1983 claim against restaurant
manager because he was not state actor); Pickett v.
Dollar Gen. Stores, No. 5:12-CV-00919, 2012 WL 7009009,
at *3 (N.D. Ala. Dec. 26, 2012), report and
recommendation adopted, No. 5:12-CV-00919, 2013 WL
450555 (N.D. Ala. Feb. 4, 2013) (§ 1983 claim against
store manager failed when plaintiff did not allege facts
showing that manager reached understanding with state
officials to interfere with plaintiff's civil rights);
Wilkes v. Walgreen's Store, No. C 07-2010MJJPR,
2007 WL 2222212, at *1 (N.D. Cal. July 30, 2007)
(plaintiff's § 1983 claim against store manager not
cognizable because private citizens are not state
IT IS ORDERED that Plaintiffs Complaint is dismissed with
prejudice for failure to state a claim upon which
relief can be granted, and judgment will be entered by