Mariam Malone Colette Martinez v. Ashtin Leasing, Inc. ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10153 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 15, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:09-cv-01723-ACC-GJK
MARIAM MALONE COLETTE MARTINEZ,
lllllllllllllllllllll Plaintiff-Appellant,
versus
ASHTIN LEASING, INC.,
ASHLEY HOREN UNDERWOOD,
ACE METRO CAB COMPANY,
d.b.a. Quick Cab Company,
BRUISSET PREVALON,
ACE CAB COMPANY DISPATCHER/SUPERVISOR,
on the night of (29 Aug 2008),
lllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 15, 2011)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Mariam Malone Colette Martinez, proceeding pro se, appeals the sua sponte
dismissal of her civil rights action for failure to state a claim. Martinez’s amended
complaint alleged violations of 42 U.S.C. §§ 1981, 1983, and 1985, as well as state
tort violations. On appeal, Martinez argues that the district court improperly
dismissed her § 1983 claim because she alleged sufficient facts to establish that the
defendants used the aid of state law enforcement officers to violate her
constitutional rights. She has abandoned her § 1981, § 1985, and state tort claims
by failing to challenge their dismissal in her appellate brief. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).
A district court shall dismiss a case proceeding in forma pauperis at any
time if the court determines that the action “fails to state a claim on which relief
may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). We review dismissal under
§ 1915(e)(2)(B)(ii) for failure to state a claim de novo. Bilal v. Driver, 251 F.3d
1346, 1348–49 (11th Cir. 2001). Failure to state a claim under § 1915(e)(2)(B)(ii)
is governed by the same standard as dismissal under Fed. R. Civ. P. 12(b)(6).
Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). In order to “survive a
motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient
2
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. __, __, 129 S.Ct. 1937, 1953, 173 L. Ed. 2d
868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974, 167 L. Ed. 2d 929 (2007). We liberally construe pro se briefs and
pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998) (per curiam).
In an action for relief under § 1983, plaintiffs “must establish that they were
deprived of a right secured by the Constitution or laws of the United States, and
that the alleged deprivation was committed under color of state law.” Focus on
the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276–77 (11th Cir.
2003) (quotation and citation omitted). Further, in order for liability under § 1983
to be imposed, the plaintiff must establish proof of an affirmative causal
connection between a defendant acting under color of state law and the
constitutional deprivation alleged. Troupe v. Sarasota County, 419 F.3d 1160,
1165 (11th Cir. 2005). A warrantless arrest without probable cause violates the
Constitution and provides a basis for a § 1983 claim, as does continuing detention
which rises to the level of malicious prosecution. See, e.g., Case v. Eslinger, 555
F.3d 1317, 1327–28 (11th Cir. 2009) (false arrest); Kingsland v. City of Miami,
382 F.3d 1220, 1234 (11th Cir. 2004) (malicious prosecution).
3
“[T]he under-color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or wrongful.” Focus on the
Family, 344 F.3d at 1277. We recognize three tests for establishing whether the
actions of a private entity are properly attributed to the state: the public function
test, the state compulsion test, and the nexus/joint action test. Id. The public
function test is satisfied when private actors perform a function that is
“traditionally the exclusive prerogative of the state.” Id. (citation and quotation
omitted). The state compulsion test is met when the government has coerced or at
least significantly encouraged the acts alleged to be unconstitutional. Focus on
the Family, 344 F.3d at 1277. The nexus/joint action test is met when the state
and the private party are in such a position of interdependence that the alleged
conduct constitutes a joint action. Id.In considering Martinez’s complaint, the district court properly concluded
that Martinez failed to state an actionable § 1983 claim because she did not allege
facts that establish state action by any of the named defendants. As we have
previously held, the mere act of reporting a suspected crime to the police is
insufficient to establish state action for purposes of a false arrest claim under
§ 1983. White v. Scrivner Corp., 594 F.2d 140, 142 (5th Cir. 1979) (dismissing a
§ 1983 claim against a store that detained a suspected shoplifter, searched her
4
purse, and then reported a concealed firearm to the police).1 Plaintiff did not name
the City of Orlando or any of the Orlando police officers who participated in her
arrest as defendants. It is possible that had she done so she would have stated a
valid claim, although it is difficult to tell from the record. However, as she did
not, the district court correctly found that the complaint did not allege a plausible
§ 1983 claim against any named defendant and dismissal was thus proper under
§ 1915(e)(2)(B)(ii).
Upon careful review of the record and consideration of the Martinez’s brief,
we affirm.
AFFIRMED.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
5