Morris May v. Fleming Companies, Inc. Ned N. Fleming Richard D. Harrison , 865 F.2d 259 ( 1988 )

865 F.2d 259

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Morris MAY, Plaintiff-Appellant,
v.
FLEMING COMPANIES, INC.; Ned N. Fleming; Richard D.
Harrison, Defendants-Appellees.

No. 88-3689.

United States Court of Appeals, Sixth Circuit.

Dec. 7, 1988.

1

Before KEITH and KRUPANSKY, Circuit Judges, and LAWRENCE P. ZATKOFF, District Judge.*

ORDER

2

The plaintiff moves to expedite the appeal from the district court's judgment dismissing this civil rights case. 42 U.S.C. Secs. 1981, 1982, and 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

The plaintiff is a prolific litigant who lives in Cincinnati, Ohio. The defendants are a food products company and two of the company's employees. In his complaint, the plaintiff alleged that the defendants used an advertising poster based on a poster originally created by Hitler's Nazi Party. Because the plaintiff is Jewish, he alleged that the defendants committed religious discrimination by using the poster. The district court dismissed the case as frivolous under 28 U.S.C. Sec. 1915(d).

4

Among the various constitutional and statutory provisions cited by the plaintiff, the only proper statutory basis for this action would be 42 U.S.C. Sec. 1983. Under that statute, the defendants must act under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981). As the district court noted, the plaintiff did not make any allegations that the defendants acted under color of state law. Therefore, the district court correctly dismissed the case.

5

The motion to expedite the appeal is denied. The judgment of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.

*

The Honorable Lawrence P. Zatkoff, U.S. District Judge for the Eastern District of Michigan, sitting by designation