October 2, 2013
LARRY WAYNE WEATHERS, Plaintiff
RITE AID PHARMACIES, Defendant
CHARLES R. SIMPSON, III, Senior District Judge.
Plaintiff, Larry Wayne Weathers, pro se , filed a 42 U.S.C. § 1983 complaint against Rite Aid Pharmacies. He also filed an application to proceed without prepayment of fees, which has been granted. Because Plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915, the Court must now undertake a preliminary review of the complaint. See 28 U.S.C. § 1915(e); McGore v. Wrigglesworth , 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock , 594 U.S. 199 (2007). For the reasons set forth below, the action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff alleges that on March 1, 2013, his constitutional rights were violated when the manager of a Rite Aid store in Washington County, Kentucky, refused to sell him alcohol, stating that Plaintiff is a known alcoholic. Plaintiff alleges that Rite Aid Pharmacies failed to train its managers, which led to this Fourteenth Amendment violation. He asks for punitive and compensatory damages.
This Court must review the instant action. See 28 U.S.C. § 1915(e)(2); McGore v. Wrigglesworth , 114 F.3d at 604-05. Upon review, this Court must dismiss a case at any time if the Court determines that the action is "frivolous or malicious, " fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff has stated a claim upon which relief can be granted, the court must construe the complaint in a light most favorable to the plaintiff and accept all of the factual allegations as true. Prater v. City of Burnside, Ky. , 289 F.3d 417, 424 (6th Cir. 2002). A complaint, or portion thereof, should be dismissed for failure to state a claim upon which relief may be granted "only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Brown v. Bargery , 207 F.3d 863, 867 (6th Cir. 2000).
While a reviewing court must liberally construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).
Plaintiff cannot properly plead a violation of the Fourteenth Amendment because that Amendment does not apply to a private entity such as Defendant in this action. See Shelley v. Kraemer , 334 U.S. 1, 13, 68 (1948). State action is required for Plaintiff to bring these claims, and Plaintiff has not alleged that Defendant is a state actor. The Supreme Court has articulated three tests for determining who are state actors: (1) the nexus test or symbiotic relationship test, Burton v. Wilmington Parking Auth. , 365 U.S. 715, 721-26 (1961); (2) the public function test, Flagg Bros. v. Brooks , 436 U.S. 149, 157 (1978); and (3) the state compulsion test, Adickes v. S.H. Kress & Co. , 398 U.S. 144, 170 (1970). See Lugar v. Edmondson Oil Co. , 457 U.S. 922, 936-39 (1982) (for a discussion of the tests); Wolotsky v. Huhn , 960 F.2d 1331, 1335 (6th Cir. 1992) (same). Absolutely nothing in the complaint suggests that under any of these tests would Defendant be considered a state actor.
For the foregoing reasons, the Court will, by separate Order, dismiss Plaintiff's complaint for failure to state a claim.