Opinion
No. 3:02-CV-0810-R
October 16, 2003
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the undersigned District Judge is of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.
The Court hereby DENIES plaintiffs motion to amend (doc. 19). By separate judgment the Court will dismiss the claims raised in this action for the reasons stated in the Findings, Conclusions, and Recommendation.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:I. BACKGROUND
Plaintiff, an inmate in the Texas prison system, initially filed this action against the Dallas Police Department under 42 U.S.C. § 1983. (Compl. at 3-4.) The Court thereafter granted him leave to file an amended complaint under § 1983, in which he dismissed the Dallas Police Department as a defendant and added his former attorney Lisa DeWitt and KTVT/CBS Television as defendants. ( See Order of Aug. 30, 2002.) On March 13, 2003, plaintiff filed a second motion to amend wherein he recognizes that § 1983 provides no jurisdictional basis against the named defendants. (Pl's Mot. Amend.) He thus seeks leave to amend his amended complaint to assert jurisdiction under 28 U.S.C. § 1331. ( Id. at 2.) No process has been issued in this case.
Plaintiff sues defendants for their role in publicly disclosing his HIV status on national television. (Amended Compl. at 3-4 4-A.) He claims that such disclosure violates his federal constitutional and state statutory right to privacy as protected by the Fourteenth Amendment to the United States Constitution and the TEXAS HEALTH SAFETYCODE § 81.103. ( Id.) As relief, he seeks monetary damages. ( Id. at 4.)
Section 81.104 provides for civil actions for damages for violations of § 81.103.
II. PRELIMINARY SCREENING
The Court has permitted plaintiff to proceed in forma pauperis. ( See Filing Fee Order of Apr. 29, 2002.) His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). This statute provides that" [n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
(A) the allegation of poverty is untrue; or
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
As demonstrated below, plaintiff fails to state a federal or constitutional claim against his attorney or the defendant television station upon which relief may be granted. A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 51142 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
III. RELIEF UNDER § 1983
As recognized by plaintiff in his latest motion to amend, plaintiff cannot state a claim against either his former attorney or the television station under 42 U.S.C. § 1983. That statute "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id. To state a claim under § 1983, plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Or. 1999).In this instance, plaintiff has no viable action under § 1983. He concedes in his most recent motion to amend that defendants are not state actors. He has alleged no conspiracy between them and any state actor. Further, this lawsuit is not based upon any state action.
In a case such as this, where the defendants are unquestionably private entities, two avenues exist by which state action may be found. A private entity may be deemed a state actor when that entity performs a function which is traditionally the exclusive province of the state. Alternatively, state action may be found where there is a nexus between the state and the action of the private defendant such that the action is fairly attributable to the state. Under this test, a finding of state action is justified "`only where it can be said that the state is responsible for the specific conduct of which the plaintiff complains.' A state is not responsible for a private party's decisions unless it `has exercised coercive power or has provided such significant encouragement, . . . that the choice must in law be deemed to be that of the state.'"Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989) (citations omitted). Defendants (plaintiff's former attorney and a commercial television station) do not perform a function which is traditionally the exclusive province of the state. In addition, there is no nexus between the state and the actions of defendants such that their actions are fairly attributable to the state. Consequently, plaintiff has no viable claim under § 1983, and the Court should dismiss his § 1983 claims as frivolous.
IV. LEAVE TO AMEND
Recognizing the flaws in his § 1983 claims, plaintiff has sought leave to amend his complaint to assert jurisdiction under 28 U.S.C. § 1331. The Court should freely grant leave to amend "when justice so requires." See Fed.R.Civ.P. 15(a). Nevertheless, such leave is not automatically granted. See Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).
[T]he propriety of allowing amendment to cure jurisdictional defects should be governed by the same standard as other amendments to pleadings, namely the standard set forth by the Supreme Court:
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the other party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."Whitmire v. Victus Ltd., 212 F.3d 885, 889 (5th Cir. 2000) (quoting Forrum v. Davis, 371 U.S. 178, 182 (1962)).
In this instance, the proposed amendment adds no viable basis for jurisdiction. Section 1331 is a general jurisdictional statute that provides no independent basis for this action. To satisfy the federal question requirements of § 1331, plaintiffs claims must have some basis in federal or constitutional law. Plaintiff premises § 1331 jurisdiction on the violation of his constitutional right to privacy.
The constitutional right to privacy, "while defying categorical description, deal[s] generally with substantive aspects of the Fourteenth Amendment." Paul v. Davis, 424 U.S. 693, 713 (1976). That Amendment provides in pertinent part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
"Because the Amendment is directed at the States, it can be violated only by conduct that may be fairly characterized as `state action.'" Lugar v. Edmonson Oil Co., 457 U.S. 922, 924 (1982). The § 1983 "statutory requirement of action `under color of state law' and the `state action" requirement of the Fourteenth Amendment are identical." Id. at 929; accord, Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988). Consequently, the proposed amendment does not cure the deficiencies of plaintiffs action. Without the requisite state action, the federal and constitutional claims of plaintiff fail whether raised specifically under 42 U.S.C. § 1983, or under the general "federal question" jurisdiction statute, 28 U.S.C. § 1331. Mere private action simply does not give rise to a constitutionally based cause of action. Because granting plaintiff leave to amend would be futile, the Court should deny leave and dismiss plaintiffs federal and constitutional claims.
V. PENDENT STATE-LAW CLAIM
Plaintiff also asserts a claim under TEXAS HEALTH SAFETY CODE § 81.103. (Amended Compl. at 4.) Section 1367 of Title 28 of the United States Code permits federal courts to exercise supplemental jurisdiction over pendent state claims. Whether to exercise such jurisdiction after dismissing the underlying federal claims is a matter left to the sound discretion of the Court. Heaton v. Monogram Credit Card Bank, 231 F.3d 994, 997 (5th Cir. 2000). When the Court dismisses the federal claims at an preliminary stage of litigation, judicial economy argues against the exercise of pendent or supplemental jurisdiction over state claims. See LaPorte Constr. Co. v. Bayshore Nat'l Bank, 805 F.2d 1254, 1257 (5th Cir. 1986). In this instance, although the screening process has taken longer than usual, the Court has dismissed plaintiffs federal claims before serving any defendant. There has been no discovery or significant movement in this action. Nothing indicates that plaintiff would be legally prejudiced by requiring him to proceed with his state claim in state court. For these reasons, the Court should decline to exercise supplemental jurisdiction over the pendant state privacy claim and dismiss that claim without prejudice. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
Plaintiff indicates that the actions of defendants that led to this litigation "occurred on or about the 8th day of November, 2001." Although no statute of limitations expressly governs actions for a violation of TEXAS HEALTH SAFETY CODE § 81.103, the two-year limitations period for personal injury actions appears most applicable to an action under § 81.104 that alleges a violation of § 81.103. The Texas courts have applied the two year-limitations period found in TEXAS CIVIL PRACTICE REMEDIES CODE § 16.003(a) to actions in which the plaintiff has alleged an invasion of privacy. See Stevenson v. Koutzarov, 795 S.W.2d 313, 319 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (stating that" [i]nvasion of privacy is governed by the two-year statute of limitations); see also, Wood v. Hustler Mag., Inc., 736 F.2d 1084, 1088-89 (5th Cir. 1984) (holding that Texas would apply its two-year statute of limitations to actions for invasion of privacy by public disclosure of private facts). Under the Texas two-year statute of limitations, it appears that plaintiff can still timely assert his state claim in state court.
VI. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court DENY plaintiff leave to amend his amended complaint and summarily DISMISS plaintiffs federal constitutional and statutory claims with prejudice for his failure to state a claim upon which relief may be granted. It is further recommended that the District Court DISMISS plaintiffs pendent state claims without prejudice to plaintiff re-filing them in state court.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).