United States District Court, W.D. Kentucky, Bowling Green Division
N. Stivers, Judge.
Brian Fishback filed a pro se, in forma
pauperis complaint which is before the Court for initial
review pursuant to 28 U.S.C. § 1915(e)(2). For the
reasons that follow, the action will be dismissed.
brings suit against Kroger pursuant to 42 U.S.C. § 1981.
As his statement of the claim, he states, “Kroger's
management accused me of a crime, that I did not commit,
while Kroger's management had video surveillance cameras
to show that I was not guilty of what they accused me of on
the day of 2/19/14.” As relief, he states, “By
Kroger's management discriminating against me, my name
was discredited and my reputation, and also damaged my
business credibility, because I work in the sales
Plaintiff is proceeding in forma pauperis, the Court
must review the complaint under 28 U.S.C. § 1915(e).
McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th
Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). On review, a district court
must dismiss a case at any time if it 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. §
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 trial 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.
order to survive dismissal for failure to state a claim,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550
U.S. at 556). “[A] district court must (1) view the
complaint in the light most favorable to the plaintiff and
(2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations
courts are to hold pro se pleadings “to less
stringent standards than formal pleadings drafted by lawyers,
” Haines v. Kerner, 404 U.S. 519 (1972), this
duty to be less stringent “does not require us to
conjure up unpled allegations, ” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a
claim for a plaintiff. Clark v. Nat'l
Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975). To command otherwise would require courts “to
explore exhaustively all potential claims of a pro
se plaintiff, [and] would also transform the district
court from its legitimate advisory role to the improper role
of an advocate seeking out the strongest arguments and most
successful strategies for a party.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
1981(a) of Title 42 of the United States Code provides:
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions
of every kind, and to no other.
statute has been construed as a prohibition against certain
forms of racial discrimination. Saint Francis Coll. v.
Al-Khazraji, 481 U.S. 604, 608-10 (1987). The elements
of a claim under § 1981 are: “(1) the plaintiff is
a member of a racial minority; (2) an intent to discriminate
on the basis of race by the defendant; and (3) the
discrimination concerned one or more of the activities
enumerated in the statute (i.e. make and enforce contracts,
sue and be sued, give evidence, etc.).” Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d
1085, 1087 (2nd Cir. 1993). The alleged discrimination must
have taken place as a result of the plaintiff's race.
Id. at 1088.
the plaintiff does not allege anywhere in his complaint that
the alleged constitutional/federal law violations were ...