The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
Plaintiff Harry Hubbard, an inmate of the Erie County
Correctional Facility at the time this complaint was filed, has
filed this pro se action seeking relief under 42 U.S.C. § 1983
(Docket No. 1) and has both requested permission to proceed in
forma pauperis and filed a signed Authorization (Docket No. 2).
Plaintiff claims that the defendants, security guards at a
department store and a town judge, violated his constitutional
rights in some manner when he was he was physically accosted and
accused of shop lifting by security guards at a Penny's store and
then arraigned on charges of shop lifting and taken to jail. For
the reasons discussed below, plaintiff's request to proceed as a
poor person is granted and the complaint is dismissed pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
Because plaintiff has met the statutory requirements of
28 U.S.C. § 1915(a) and filed an Authorization with respect to this
action, plaintiff is granted permission to proceed in forma
pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides that the
Court shall dismiss a case in which in forma pauperis status has been granted if
the Court determines that the action (i) is frivolous or
malicious; (ii) fails to state a claim upon which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief. In addition, 28 U.S.C. § 1915A(a)
requires the Court to conduct an initial screening of "a
complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a
governmental entity," id., regardless of whether or not the
inmate has sought in forma pauperis status under
28 U.S.C. § 1915.
In evaluating the complaint, the Court must accept as true all
factual allegations and must draw all inferences in plaintiff's
favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999).
Dismissal is not appropriate "unless 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). "This rule applies with particular force where
the plaintiff alleges civil rights violations or where the
complaint is submitted pro se." Chance v. Armstrong,
143 F.3d 698, 701 (2d Cir. 1998). Based on its evaluation of the
complaint, the Court finds that plaintiff's claims must be
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and (iii)
and 1915A(b) because they fail to state a claim upon which relief
may be granted or seek damages from a party immune from such relief.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To
state a valid claim under 42 U.S.C. §§ 1983, the plaintiff must
allege that the challenged conduct (1) was attributable to a
person acting under color of state law, and (2) deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States." Whalen v. County of
Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v.
Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). Plaintiff names the Amherst Town Court and Municipalities as
defendants. He does not, however, allege any facts that state a
cause of action as to the Amherst Town Court or municipality.
Plaintiff alleges that Judge Farrell is the Judge of the
Municipal Jail for the Town of Amherst, manages the operations of
the jail and its policies, and that he is a municipal
corporation. Although the Court is skeptical that these
allegation can be born out, plaintiff has made no allegation that
states a cause of action under 42 U.S.C. § 1983. In any event, it
is well settled that judges are absolutely immune from suit for
any actions taken within the scope of their judicial responsibilities.
See, e.g., Mireles v. Waco, 502 U.S. 9 (1991).
Although unfairness and injustice to a litigant may
result on occasion, "it is a general principle of the
highest importance to the proper administration of
justice that a judicial officer, in exercising the
authority vested in him, shall be free to act upon
his own convictions, without apprehension of personal
consequences to himself."
Id., at 10, 287 (quoting Bradley v. Fisher, 80 U.S. (13
Wall.) 335, 347 (1871)). The protection of immunity is not
pierced by allegations that the judge acted in bad faith or with
malice, Pierson v. Ray, 386 U.S. 547
, 554 (1967), even though
"unfairness and injustice to a litigant may result on occasion,"
Mireles, 502 U.S. at 9. The United States Supreme Court has
expressly applied the doctrine of judicial immunity to actions
brought pursuant to 42 U.S.C. § 1983. See Pierson,
386 U.S. at 547. Absolute immunity bars not only plaintiff's § 1983 claim for
damages but also his claim for injunctive relief. The 1996
amendments to § 1983 provide that "in any action brought against
a judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless
a declaratory decree was violated or declaratory relief was
unavailable." Federal Courts Improvement Act of 1996, § 309(c), Pub.L. No. 104-317, 110
Stat. 3847, 3853 (1996) (amending 42 U.S.C. § 1983). Plaintiff
alleges neither the violation of a declaratory decree, nor the
unavailability of declaratory relief. Plaintiff's claims against
the Amherst Town Court and Municipalities are dismissed.
The remaining parties appear to be private parties. J.C. Penny
Department Store is a private enterprise and not a governmental
entity of the state or a municipality; as such, the defendant is
not a "person" acting under color of state law for purposes of
42 U.S.C. § 1983 and may not be subjected to constitutional
restraints which are addressed by that statute. See Lugar v.
Edmondson Oil Company, Inc., 457 U.S. 922(1981) (Fourteenth
Amendment offers no shield against private conduct, however
discriminatory or wrongful); see also Zemsky v. City of New
York, 821 F.2d 148, 151 (2d Cir.), cert. denied, 484 U.S. 965
(1987). Similarly, Touron Glover and the other security guards
were employees of J.C. Penny, and, therefore, also private
parties. Plaintiff makes no allegation that the private parties
were acting jointly with state actors in some manner that would
make the private parties subject to § 1983. Adickes v. S.H.
Kress & Co., 398 U.S. at 152. See also Lugar v. Edmondson Oil
Co., 457 U.S. 922 (1982). Accordingly, J.C. Penny and its
employees are not subject to the mandates of the civil rights
statute and the case against them must be dismissed.
Plaintiff has met the statutory requirements of
28 U.S.C. § 1915(a) and filed an Authorization with respect to the filing
fee. Accordingly, plaintiff's request to proceed in forma
pauperis is granted and, for the reasons discussed above, the
complaint is dismissed with prejudice pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and (iii) and 1915A. Plaintiff is forewarned
that his right to pursue further relief in federal court at
public expense will be greatly curtailed if he has three actions
or appeals dismissed under the provisions of
28 U.S.C. §§ 1915(e)(2)(B) and 1915A. See 28 U.S.C. § 1915(g).
IT HEREBY IS ORDERED, that plaintiff's request to proceed in