United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION THAT PLAINTIFF'S
COMPLAINT BE DISMISSED AS FRIVOLOUS
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE
THE COURT is pro se Plaintiff Edward James
Hopson's Complaint, filed in forma pauperis.
(ECF No. 1). The Complaint alleges that the Meridian Star
newspaper, WTOK television, and these entities' general
managers (collectively referred to as Defendants) violated
his First Amendment rights under the United States
Constitution by failing to publish a story about him and
other stories that he desired. It is recommended that
Plaintiff's suit be dismissed as frivolous.
contends that Defendants “have for seven (7) years now
refuse to inform the public of a white on black crimes, in a
city and county where blacks are the ‘larger
percentage' . . . and the biggest economic, and some
instance, Blacks have become targets for human prey, as
here.” (ECF No. 1, at 1-2) [all sic in original].
Plaintiff submits that he is “contesting his rights as
a black minority to freedom of speech, freedom of religious,
and freedom of press, and freely challenge the
‘defendants' to charge him with
‘perjury.'” Id. [all sic in
original]. Plaintiff's fundamental complaint is that
Defendants failed to publish a story about Plaintiff being
purportedly framed by public law enforcement officers in 1989
for a crime he alleges that he did not commit. Id.
at 4-5, 12-23.
March 28, 2018, the undersigned issued an Order for Plaintiff
to Show Cause Why His Complaint Should Not Be Dismissed as
Frivolous. (ECF No. 4). The Order advised Plaintiff that in
order to state a cause of action under 42 U.S.C. § 1983,
“a plaintiff must allege facts showing that a person,
acting under color of state law, deprived the plaintiff of a
right, privilege or immunity secured by the United States
Constitution or the laws of the United States.”
Bryant v. Military Dep't of Miss., 597 F.3d 678,
686 (5th Cir. 2010). “A person acts ‘under color
of state law' if he engages in the misuse of power,
possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
Section 1983 does not reach private conduct. Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
“[T]he under-color-of state-law element of § 1983
excludes from its reach merely private conduct, no matter how
discriminatory or wrongful.” Id. at 50
(internal citations and quotations omitted). “There are
instances, though rare, when a private individual or company
can be found to act under color of law, but ‘state
action may be found in those circumstances 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.'”
Smith v. Pro Logistics, Inc., No.
3:14-cv-447-DPJ-FKB, 2014 WL 5107595, *3 (S.D.Miss. Oct. 10,
2004) (citing Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass'n, 531 U.S. 288, 295 (2001) (internal
Plaintiff sued private, non-government actors, and did not
allege facts supporting a finding that his case was one of
the rare instances where private behavior could be treated as
that of the State, the undersigned ordered that Plaintiff
show cause why his Complaint should not be dismissed as
prevent abusive or captious litigation, the federal in
forma pauperis statute, 28 U.S.C. § 1915,
authorizes federal courts to dismiss a claim filed in
forma pauperis “at any time if the court
determines that -- the action or appeal is frivolous or
malicious; fails to state a claim upon which relief may be
granted; or seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2).
Plaintiff has filed a Response (ECF No. 5) to the Order to
Show Cause but has not cured the defects in his Complaint by
providing facts upon which the Court could find that
Defendants' private behavior could be treated as that of
the State. The absence of any factual allegation from which a
plausible cause of action could be inferred - even given the
liberality with which pro se pleadings are to be
construed - leads the undersigned to conclude that
Plaintiff's lawsuit is legally frivolous. Plaintiff has
filed numerous suits in this Court, most while imprisoned,
and four have been dismissed as frivolous. See Hopson v.
Compton, 4:94-cv-58-TSL; Hopson v. Newman,
4:95-cv-104-TSL; Hopson v. Vick, 4:95-cv-105-TSL;
Hopson v. Miller, 4:97-cv-163-TSL. The undersigned
recommends that this suit also be dismissed as frivolous.
OF RIGHT TO APPEAL/OBJECT
to Local Uniform Civil Rule 72(a)(3),
After service of a copy of the magistrate judge's report
and recommendations, each party has fourteen days to serve
and file written objections to the report and
recommendations. A party must file objections with the clerk
of court and serve them upon the other parties and submit
them to the assigned district judge. Within seven days of
service of the objection, the opposing party or parties must