Howard v. Bailey ( 2022 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION GAVIN HOWARD, ) ) Plaintiff, ) ) v. ) Case No. 7:22-cv-661-AMM-GMB ) JASON P. BAILEY, ) ) Defendant. ) MEMORANDUM OPINION The Magistrate Judge entered a report on October 31, 2022, recommending that this action be dismissed without prejudice under 28 U.S.C. § 1915A(b) for failing to state a claim upon which relief can be granted. Doc. 16. Plaintiff Gavin Howard has filed an objection to the report and recommendation. Doc. 17. Mr. Howard does not address the recommendation of the Magistrate Judge but instead repeats many of the factual assertions he made in his complaint. See Doc. 17. Moreover, Mr. Howard’s objection does not acknowledge that the defendant, Jason P. Bailey, is a private attorney and not a state official acting under color of law, as 42 U.S.C. § 1983 requires. See Blanton v. Griel Mem’l Psychiatric Hosp., 758 F.2d 1540, 1542 (11th Cir. 1985). Mr. Howard’s “request to [strike] conspiracy of the records along with David Lance Bailey,” Doc. 17 at 2, does not show that Mr. Bailey is a state actor or that Mr. Bailey conspired with a state actor to violate his constitutional rights. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 931-32 (1982); Dennis v. Sparks, 449 U.S. 24, 27-29 (1980). After careful consideration of the record in this case and the Magistrate Judge’s report and Mr. Howard’s objection, the court ADOPTS the report and ACCEPTS the recommendation. Consistent with that recommendation and 28 U.S.C. § 1915A(b), this action is dismissed without prejudice for failing to state a claim upon which relief can be granted. A final judgment will be entered. DONE and ORDERED this Ist day of December, 2022. UNITED STATES DISTRICT JUDGE