United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
Christina A. Bryan United States Magistrate Judge.
matter is before the court on Defendant's Motion to
Dismiss for Failure to State a Claim, or in the Alternative,
Motion for More Definite Statement (Dkt. 6). In response,
Plaintiff filed what he styled a "More Definite
Statement, Judicial Notice and Bill" (Dkt. 10). The
court recommends that the Motion to Dismiss be granted.
instituted this suit by filing a form Complaint for Violation
of Civil Rights. Dkt. 1. The Complaint alleges that this suit
is against state or local officials. Id. at 3.
However, Plaintiff has named only one defendant in this case,
Genesis Community Management, Inc. ("Genesis").
Plaintiff alleges that Genesis has violated his civil rights
by sending him documents in an attempt to collect a debt he
allegedly owes to his neighborhood association, Candlelight
Oaks Village Maintenance Fund. See Dkt. 10. He
brought this suit asserting jurisdiction and a cause of
action pursuant to 42 U.S.C. § 1983. Dkt. 1.
moves to dismiss Plaintiffs Section 1983 claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) arguing that
Plaintiff has not alleged a deprivation of any constitutional
right, and that Defendant is not a state actor.
Alternatively, and in the event the court declines to dismiss
the case in its entirety, Defendant seeks pursuant to Federal
Rule of Civil Procedure 12(e) a more definite statement of
the facts underlying each cause of action Plaintiff is
Rule 12(b)(6) Standards
reviewing a pleading under Rule 12(b)(6), the "court
accepts 'all well-pleaded facts as true, viewing them in
the light most favorable to the plaintiff.'"
Martin K. Eby Constr. Co. v. Dallas Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir.2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324
(5th Cir.1999)). However, only facts are entitled
to an assumption of truth; legal conclusions unsupported by
factual allegations do not suffice. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). To survive a Rule
12(b)(6) motion to dismiss, the plaintiff must plead
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678; Gonzalez v. Kay,
577 F.3d 600, 603 (2009). The motion to dismiss pursuant to
Rule 12(b)(6) must be decided on Plaintiffs pleading
alone. Fed.R.Civ.P. 12(d); McCartney v. First
City Bank, 970 F.2d 45, 47 (5th Cir. 1992) ("We may
not look beyond the pleadings" on a 12(b)(6) motion).
"In deciding whether a plaintiff has stated a claim upon
which relief can be granted, the Court must construe the
complaint in the light most favorable to the plaintiff and
with every doubt resolved on the plaintiffs behalf,
particularly where the plaintiff is pro se." Reule
v. Sherwood Valley I Council of Co-Owners, Inc., Civil
Action No. H-05-3197, 2005 WL 2669480, at *3 (S.D. Tex. Oct.
42 U.S.C. § 1983 Standards
1983 does not create or establish a right in and of itself.
Section 1983 provides a private right of action against
parties acting 'under color of any statute, ordinance,
regulation, custom, or usage, of any State' to redress
the deprivation of rights secured by the United States
Constitution of federal law." Hutton v. Shamrock
Ridge Homeowners Ass'n, No. 3:09-CV-1413-O, 2009 WL
4796626, at *2 (N.D. Tex. Dec. 14, 2009) (quoting City of
St. Louis v. Praprotnik, 485 U.S. 112, 117 (1988)). In
order to state a claim under Section 1983, a Plaintiff must
(1) allege a violation of rights secured by the Constitution
or laws of the United States and (2) demonstrate that the
alleged deprivation was committed by a person acting under
color of state law. Leffall v. Dallas Indep. School
Dist., 28 F.3d 521, 525 (5th Cir. 1994).
plaintiff may satisfy the "under color of state
law" requirement of Section 1983 by proving that the
conduct causing the deprivation is "fairly attributable
to the State." Landry v. A-Able Bonding, Inc.,
75 F.3d 200, 203-04 (5th Cir. 1996). Conduct is fairly
attributable to the state when (1) the deprivation of
constitutional rights is caused by the exercise of a
state-created right or privilege, by a state-imposed rule of
conduct, or by a person for whom the state is responsible,
and (2) the party charged with the deprivation may
be fairly described as a state actor. Id. (emphasis
added). If the party sued is not a state actor, the claim
"manifestly fails." Hutton, 2009 WL
4796626, at *2. "Throughout the history of Section 1983,
courts have been strongly admonished to make a threshold
inquiry whether the plaintiff complains of state action or
'private conduct, . . . against which the Fourteenth
Amendment offers no shield.'" Id. (internal
citations omitted). "[T]he under-color-of-state-law
element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful."
Hutton, 2009 WL 4796626, at*2.
qualifies as a state actor if he is a state official, he has
acted together with or has obtained significant aid from
state officials, or his conduct is otherwise chargeable to
the state. Lugar v. Edmondson Oil Co., 457 U.S. 922,
937 (1982). A private party does not become a state actor
simply by taking an action provided for by state statute.
Id. at 939. In order for a private party to be a
state actor, there must be a close nexus between the private
party's challenged action and the state, such as when the
private party willfully participates with the state in a
joint activity. See Id. at 941 (state and private
entity jointly executed writ of attachment of property);
see also Brentwood Acad. v. Tennessee Secondary Sch.
Athletic Ass'n, 531 U.S. 288, 295 (2001)
("state action may be found if, though only if, there is
such a close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated
as that of the State itself).
Genesis is not a state actor and has not deprived Plaintiff
of civil rights
Genesis is ...