ALLEN v. UPTOWN CHEAPSKATE
| DERRICK ALLEN |
| UPTOWN CHEAPSKATE, MELANIA, APEX POLICE DEPARTMENT, JACQUES K. GILBERT, SHAWN PURVIS, ADAM STEVENS, CORY'S FIRE DEPARTMENT and WAKE COUNTY |
| 1:2022cv00711 |
| August 29, 2022 |
| US District Court for the Middle District of North Carolina |
| L PATRICK AULD |
| THOMAS D SCHROEDER |
| Civil Rights: Other |
| 28 U.S.C. § 1331 Fed. Question |
| Plaintiff |
Docket Report
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| Filing 9 USCA Pre-filing review case docketed from USCA re #7 Notice of Appeal Without Fee Payment filed by DERRICK ALLEN. USCA Case Manager: Ashley Brownlee. USCA Case Number 22-294. (Sheets, Jamie) |
| Filing 8 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re #7 Notice of Appeal Without Fee Payment. (Sheets, Jamie) |
| Filing 7 NOTICE OF APPEAL Without Fee Payment as to #6 Judgment, by DERRICK ALLEN. (Sheets, Jamie) |
| Filing 6 JUDGMENT signed by CHIEF JUDGE THOMAS D. SCHROEDER on 10/4/2022 adopting the Magistrate Judge's Recommendation; that this action is DISMISSED pursuant to 28 U.S.C. 1915(e)(2)(B) as frivolous and for failure to state a claim. (Sheets, Jamie) |
| CASE REFERRED to CHIEF JUDGE THOMAS D. SCHROEDER RE: RECOMMENDED RULING by MAGISTRATE JUDGE. (Engle, Anita) |
| Filing 5 Notice of Mailing Recommendation: Objections to R&R due by 9/20/2022. Objections to R&R for Pro Se due by 9/23/2022. (Sheets, Jamie) |
| TEXT ORDER terminating #1 Application for Application to Proceed in District Court without Prepaying Fees or Costs, in light of the Text Recommendation of dismissal entered this day. Issued by MAG/JUDGE L. PATRICK AULD on 09/06/2022. (AULD, L.) |
| TEXT RECOMMENDATION that the Court dismiss this action under 28 U.S.C. 1915(e)(2)(B) as frivolous and for failure to state a claim. In #2 Complaint, Plaintiff alleges that Defendants (a business, one of its employees, the Town of Apex's police department, mayor, town manager, and town clerk, the City of Cary's fire department, and Wake County) violated the Seventh, Eighth, and Fourteenth Amendments (as made actionable by 42 U.S.C. s 1983), because (A) he "was trespassed from [the business] for no legitimate reason at all" and instead "only conducted or attempted to conduct business with [the business]," (B) he "sold a pair of Jordans that costed [sic] $200.00, and received $16.00, [which is] not a 3rd of $200.00 which infringeds [sic] the 7th Amendment of the United States Constitution," (C) "police personnels [sic] and firefighter [sic] kids take clothing that they no longer desire to keep [to the business]," and "[t]hey see [Plaintiff] in these areas, and communicate with management and [Plaintiff is] trespassed simply conducting business," and (D) "the mayor of Apex, the town manager and city clerk are liable for misconduct." Those allegations fail as a matter of law in an obvious manner that renders this action frivolous for a host of reasons. First, #2 Complaint lacks any factual allegations to support an inference that the defendant-business and its employee acted under color of state law so as to trigger potential civil liability under Section 1983. In particular, "[i]t is clear that [the business and its management/employee] did not act under color of law in obtaining a trespass warning barring Plaintiff from the [business] property, and therefore [they are] not subject to suit under [Section] 1983." Scott v. Mackey, No. 3:19CV3752, 2019 WL 7606239, at *2 (N.D. Fla. Dec. 26, 2019) (unpublished), recommendation adopted, 2020 WL 354325 (N.D. Fla. Jan. 21, 2020) (unpublished); see also Durante v. Fairlane Town Ctr., Civ. No. 03-73128, 2004 WL 5570283, at *5 (E.D. Mich. Dec. 8, 2004) (unpublished) (rejecting claim that store and its employee "acted under color of law in connection with... [the plaintiff's] expulsion from [the] store premises, or his arrest and subsequent prosecution for trespassing," and observing that "promiscuous extension of... federal question jurisdiction to garden variety marketplace disputes between private actors is unwarranted and unwise"), aff'd, 210 F. App'x 338 (6th Cir. 2006). Second, the civil jury trial right guaranteed by the Seventh Amendment does not create any right to enforce consumer disputes and the refusal to do business with Plaintiff and/or to refuse to pay him more money for a pair of used athletic shoes neither amounts to cruel and unusual punishment or any other form of Eighth Amendment violation nor denies Plaintiff the equal protection of the laws or any other protection guaranteed by the Fourteenth Amendment. Third, police and fire departments do not constitute legal entities subject to suit. Fourth, as to Wake County and the municipalities of Apex and Cary (to the extent the Court construed them as the real-parties-in-interest as to any Section 1983 claim brought against their respective police and fire departments), #2 Complaint lacks any factual allegations showing that any custom or policy of any such local governmental entity caused any alleged constitutional violation. Fifth, #2 Complaint lacks any factual allegations showing that any of the remaining defendants (the mayor, town manager, and town clerk of Apex) committed any act or omission that caused any alleged constitutional violation. Sixth, #2 Complaint relies entirely on conclusory allegations that unnamed police officers and firefighters (or their children) caused the business to trespass Plaintiff. In connection with many prior actions, the Court repeatedly has advised Plaintiff of each of the foregoing requirements/prohibitions (i.e., the state-action requirement, the frivolousness of his attempts to convert routine consumer disputes into federal constitutional claims, municipal departments' lack of capacity to sue or be sued, the custom/policy requirement for claims against local governmental entities, the prohibition on liability against high-ranking government officials based merely on their title/position (rather than their acts or omissions), and the prohibition against reliance on conclusory allegations. Plaintiff's persistence in filing frivolous federal actions supports the denial of future pauper applications under the discretionary authority of 28 U.S.C. 1915(a)(1), without consideration of the substance of his related complaints under the provisions of Section 1915(e)(2)(B). See Blakely v. Wards, 738 F.3d 607, 612 (4th Cir. 2013); see also id. at 619-22 (Wilkinson, J., concurring), 624 (Duncan, J., concurring). Plaintiff has compounded his waste of this Court's resources by filing this action in the wrong venue, as #2 Complaint notes that all events occurred and Defendants all reside in the Eastern District of North Carolina; indeed, #2 Complaint even asks as relief for the transfer of this case to the United States District Court for the Eastern District of North Carolina (which request the Court should deny in light of the frivolous nature of this action). Issued by MAG/JUDGE L. PATRICK AULD on 09/06/2022. (AULD, L.) |
| Motions Referred to MAG/JUDGE L. PATRICK AULD RE: #1 APPLICATION to Proceed IFP. (Sheets, Jamie) |
| Case ASSIGNED to CHIEF JUDGE THOMAS D. SCHROEDER and MAG/JUDGE L. PATRICK AULD. (Sheets, Jamie) |
| Filing 4 Notice of Signed Pro Se Electronic Service Consent by DERRICK ALLEN 78DERRICKALLEN@GMAIL.COM. (Sheets, Jamie) |
| Filing 3 CIVIL COVER SHEET. (Sheets, Jamie) |
| Filing 2 COMPLAINT against All Defendants, filed by DERRICK ALLEN. (Sheets, Jamie) |
| Filing 1 APPLICATION to Proceed IFP by DERRICK ALLEN. (Sheets, Jamie) |
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