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Cross v. Perry

United States District Court, W.D. Kentucky, Louisville Division

April 17, 2015

ANGELO L. CROSS, Plaintiff,
SGT. SCOTT PERRY #2885 et al., Defendants.


DAVID J. HALE, District Judge.

Plaintiff, Angelo L. Cross, filed a pro se, in forma pauperis complaint on a general complaint form. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915(e)(2) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons set forth below, the action will be dismissed.


Plaintiff sues Louisville Police Sargeant Scott Perry, Mr. Terry Schagene, and the Louisville Police. As grounds for filing the complaint, he states: "false arrested, false imprisonment, slander perjury, etc." He states that he had discovered a few years earlier that people from out of town often asked him for "information to bar and hotel etc. and some time they be to[o] drunk they forget where they park or the hotel they was in so I a job by helping them find out where they want to go and I call myself Mr. Info Man." He states that he wore a sign around his neck saying "Info Man" to prove that he was not panhandling or harassing anyone. He states further: "But when Officer Scott see me helping people out he did just lock me up; he didn't want me down town at all, so he said so." Plaintiff also alleges, "Mr. Terry Schagene put my picture on his parking lot saying that I was a con man without having me go to court first to prove it." As relief, Plaintiff asks for "the court to stop him from perjury" and for payment for his pain and suffering "and for making me be homeless now."

Plaintiff attaches, among other things, a Criminal Complaint Summons, in which the affiant, Defendant Schagene, stated that he is the owner of several parking lots. Defendant Schagene further stated that Plaintiff unlawfully approached customers parking in his parking lot, represented himself as a parking attendant, and received monies from customers for parking.

Before conducting the initial review, the Court ordered Plaintiff to explain whether the charges brought against him were still pending. In response, Plaintiff has submitted copies of paperwork which appear to show that charges brought on April 20, 2014, of harassment (no physical contact) and offenses against public peace were dismissed on June 11, 2014.


Because Plaintiff is proceeding in forma pauperis, 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).

Additionally, as always, the Court must consider whether it has subject-matter jurisdiction. Federal courts hear only cases allowed under the Constitution or cases which Congress has entrusted to them by statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Jurisdiction in this Court may be premised on a federal question, 28 U.S.C. § 1331, or diversity jurisdiction, 28 U.S.C. § 1332. This Court must dismiss the action if it is determined "at any time that [the Court] lacks subject-matter jurisdiction." Fed.R.Civ.P. 12(h)(3).

Here, the complaint does not state any basis for this Court's jurisdiction. The Court finds that no diversity jurisdiction exists in this case. Under the diversity-of-citizenship statute, "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000... and is between... citizens of different states...." 28 U.S.C. § 1332(a)(1). "[D]iversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). Plaintiff does not claim that the matter in controversy exceeds $75, 000, and Plaintiff's address and at least some, if not all, of Defendants' addresses are in Kentucky. Consequently, Plaintiff cannot show jurisdiction over any of the Defendants by way of the federal diversity statute.

Therefore, for purposes of initial review, the Court will assume that Plaintiff is attempting to avail himself of federal-question jurisdiction. To do so, Plaintiff must allege a cause of action under 42 U.S.C. § 1983 or similar statute which provides a necessary conduit through which a plaintiff might recover for federal-rights violations perpetrated against him. 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). To prevail on a claim under § 1983, Plaintiff must establish "(1) that there was the deprivation of a right secured by the Constitution and (2) that the deprivation was caused by a person acting under color of state law." Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).

Defendant Schagene

Section 1983 typically cannot be used to bring an action against a private citizen, like Defendant Schagene. Only if the alleged infringement of federal rights is fairly attributable to the state may private persons be held to be state actors. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). The Supreme Court has articulated three tests for determining who are state actors. These three tests are: (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, West v. Atkins, 487 U.S. 42, 49-50 (1988); 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. Edmonson Oil Co., Inc., 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).

Here, the only suggested link between Defendant Schagene and the state is the allegation that Defendant Schagene complained to the police about Plaintiff's activities. A private citizen who provides information to the police is not acting "under color of law." See Bryant-Bruce v. Vanderbilt Univ., Inc., 974 F.Supp. 1127, 1142 (M.D. Tenn. 1997) ("The mere furnishing of information to state officials does not constitute joint action sufficient to render a private citizen a state ...

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