Opinions in Fox v. Hawk

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Memorandum opinions in Fox v. Hawk dismissing frivolous claims against various individual defendants and the Mormon Church.
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  United States District Court,D. Utah,Central Division.Frank G. FOX, Plaintiff,v.Howard HAWK, et al., Defendants.No. 2:08CV00192 DS.April 1, 2008. Frank G. Fox, San Marcos, TX,  pro se . MEMORANDUM OPINION AND ORDER  DAVID SAM, Senior District Judge.Plaintiff, proceeding  pro se and in forma pauperis , has filed a civil rights complaint pursuant to 42 U.S.C. §§ 1983 and 1985. Named as defendants are Howard Hawk, AhmadCorbitt, and The Church of Jesus Christ of Latter-Day Saints (the “Church”). In vague andconclusory fashion Plaintiff generally alleges that he is a citizen of Texas and that DefendantHawk has harassed and threatened him. No allegations are made as to Defendant Corbitt or theChurch.The Court has reviewed Plaintiff's Complaint with the deference due his  pro se statusunder the standard set forth in  Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir.1991). In order to prevail in a § 1983 action, a plaintiff must show that he was injured as a result of state action. Gallagher v. Neil Young Freedom Concert  , 49 F.3d 1442, 1447 (10th Cir.1995). Thus, privateconduct “no matter how discriminatory or wrongful,” may not be redressed by a § 1983 claim.  American Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 50 (1999).Although the Supreme Court “has taken a flexible approach to the state action doctrine,applying a variety of test to the facts of each case”, Gallagher  , 49 F.3d at 1447, Plaintiff cites nofacts whatsoever from which state action possibly could be inferred. Indeed, as to both theindividual defendants Plaintiff specifically states that neither one was acting under authority or color of state law when his claims occurred. Plaintiff makes no allegations at all as to the Church.Because Plaintiff has failed to allege or cite any evidence that Defendants were acting under anyauthority or color of state law, he has failed to state a claim under § 1983.Plaintiff also contends his compliant is brought pursuant to 42 U .S.C. § 1985. 1 To state aclaim under § 1985(3), a plaintiff must show: (1) a conspiracy, motivated by racially-discriminatory animus; (2) to deprive plaintiff of equal protection of the laws; (3) an act infurtherance of the conspiracy: and (4) a deprivation of rights resulting therefrom. Tilton v. Richardson , 6 F.3d 683, 686 (10th Cir.1993), cert. denied  , 510 U.S. 1093 (1994). A private 1Section 1985 has three subparts: (1) Preventing an officer from performing his duties; (2) Obstructing justice;intimidating a party, witness or juror; and (3) Depriving a person of rights or privileges. The Court presumesPlaintiff's claims is made pursuant to 42 U.S.C. § 1985(3).  conspiracy is protected under 1985(3), if at all, only if “the right aimed at by the conspiracy isone protected against both public and private interference. Id. Plaintiff has set forth noallegations that would support a claim under § 1985. He has done no more than reference thestatute. He has not identified the members of the conspiracy or identified any act or factsdemonstrating a racial, discriminatory animus on the part of any of the Defendants, or any act infurtherance of a conspiracy. Absent any allegations that would support a claim under § 1985,Plaintiff has failed to state a claim for relief under that provision.In his claim that jurisdiction is proper in this Court, Plaintiff also references, withoutelaboration, that jurisdiction is based on Title VII of the Civil Rights Act of 1964 and a FirstAmendment claim of Invasion of Privacy. Title VII makes it “an unlawful employment practicefor an employer ... to discriminate against any individual with respect to his compensation,terms, conditions or privileges or employment, because of such individual's race, color, religion,sex, or national srcin.” 42 U.S.C. § 2000e-2(a)(1). The Complaint contains insufficientallegations to support a Title VII claim and, thus, fails to state a claim. As to any claim of constitutional invasion of privacy, the Complaint similarly is devoid of any supportingallegations sufficient to state a claim upon which relief can be granted. Assuming Plaintiff intended to assert such claims, they are both defective for failure to state a claim.The court  sua sponte may dismiss a complaint under Fed R. Civ. P. 12(b)(6) for failure tostate a claim.  Hall  , 935 F.2d at 1109-10. Because Plaintiff is also proceeding in forma pauperis ,the court is directed to dismiss such a case at any time if the court determines that the action isfrivolous or malicious or fails to state a claim on which relief may be granted. 28 U.S.C. §1915(e)(2)(B). The preferred practice, however, is to allow a plaintiff an opportunity to amendunless doing so would be futile. See e.g. McKinney v. State of Okl. Dept. of Human Services , 925F.2d 363, 365 (10th Cir.1991).Accordingly, Plaintiff, if he so desires, has leave of Court to file an amended complaintno later than fifteen (15) days from the date of this order. Failure to respond and/or inadequate or incorrect information will result in the dismissal of this matter, with prejudice, for failure to statea claim, or as frivolous or malicious.IT IS SO ORDERED.Citation: 2008 WL 877393.  United States District Court,D. Utah,Central Division.Frank G. FOX, Plaintiff,v.Howard HAWK, et al., Defendants.No. 2:08CV00192 DS.May 9, 2008. Frank G. Fox, San Marcos, TX,  pro se . MEMORANDUM OPINION AND ORDER  DAVID SAM, Senior District Judge.Plaintiff, proceeding  pro se and in forma pauperis , has filed a civil rights complaint pursuant to 42 U.S.C. §§ 1983 and 1985. Named as defendants are Howard Hawk, AhmadCorbitt, and The Church of Jesus Christ of Latter-Day Saints (the “Church”). In vague andconclusory fashion Plaintiff generally alleges that he is a citizen of Texas and that DefendantHawk has harassed and threatened him and his parents. The only allegation made as toDefendant Corbitt is that he has ignored Plaintiff's complaints. No allegations are made as to theChurch.In a Memorandum Decision dated April 1, 2008, Plaintiff's claims were analyzed by theCourt and he was informed why, in the Court's view, he had failed to state claims upon whichrelief could be granted and, therefore, his Complaint was subject to dismissal. Plaintiff was givenleave to file an amended complaint and cautioned that inadequate pleading would result indismissal of this case with prejudice.On April 11, 2008, Plaintiff filed an Amended Civil Rights Complaint pursuant to 42U.S.C. §§ 1983 and 1985. Upon review, the Court finds Plaintiff continues to make vague andconclusory allegations that fail to state any claim for which relief can be granted.As the Court previously advised Plaintiff, private conduct may not be redressed by a §1983 claim. Gallagher v. Neil Young Freedom Concert  , 49 F.3d 1442, 1447 (10th Cir.1995);  American Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 50 (1999). As to both the individualdefendants Plaintiff specifically states that neither one was acting under authority or color of state law when his alleged claims occurred. He makes no allegations at all as to the Church.Because Plaintiff has failed to allege or cite any evidence that Defendants were acting under anyauthority or color of state law, he has failed to state a claim under § 1983, and his claim must bedismissed.Plaintiff also contends that his Amended Complaint is brought pursuant to 42 U.S.C. §1985. Ignoring the Court's earlier admonition, he has not identified the members of theconspiracy or identified any act or facts demonstrating a racial, discriminatory animus on the part  of any of the Defendants. Tilton v. Richardson , 6 F.3d 683, 686 (10th Cir.1993), cert. denied  , 510U.S. 1093 (1994). Because Plaintiff has failed to set forth any allegations that would support aclaim under § 1985, he has failed to state a claim for relief and his claim under that provisionmust be dismissed. 1 Accordingly, for the reasons stated it is ordered that Plaintiff's Amended Complaint is dismissedwith prejudice.Citation: 2008 WL 2018196 1It is not clear to the Court whether Plaintiff also is asserting a claim under Title VII of the Civil Rights Act of 1964. In any event and notwithstanding the Court's earlier direction, the Amended Complaint does not containsufficient allegations to support a Title VII claim, and to the extent such a claim is asserted it must be dismissed.
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