Free Memorandum and Order - District Court of Delaware - Delaware

Case 1 :04-cv-00160-GMS Document 9 Filed 01/17/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VICTOR W. TALMO, )
Plaintiff, g
v. g Civ. No. 04-160-GMS
PARALEGAL J ONI L. JOHNSON, 3
Defendant. J
MEMORANDUM
Victor W. Talmo ("Talmo"), a prisoner incarcerated at Sussex Correctional Institution
("SCI"), Georgetown, Delaware, brings this lawsuit pursuant to 42 U.S.C. § 1983. He appears
pro se and was granted permission to proceed informa pauperis pursuant to 28 U.S.C. § 1915.
(D.I. 4) The court now proceeds to review and screen the complaint pursuant to 42 U.S.C. §
1915 and § 1915A.
For the reasons discussed below, the complaint is dismissed as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).
I. THE COMPLAINT il
Talmo brings this suit alleging that he entered into a contract with Joni L. Johnson
("J0hnson") for paralegal services. Talmo alleges that Johnson was hired to file a habeas corpus
petition, but that she breached the contract by not timely filing the petition in federal court.
Talmo seeks rettun of monies he paid to Johnson and any other relief the court deems
appropriate.
II. STANDARD OF REVIEW
When a litigant proceeds informa pauperis, 28 U.S.C. § 1915 provides for dismissal

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.
under certain circumstances. When a prisoner seeks redress in a civil action, 28 U.S.C. § 1915A
l provides for screening of the complaint by the court. Both 28 U.S.C. § 191 5(e)(2)(B) and §
f 1915A(b)(1) provide that the court may dismiss a complaint, at any time, if the action is
frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary
relief from a defendant immune from such relief. An action is frivolous if it “lacks an arguable
1 basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
l The court must "accept as true factual allegations in the complaint and all reasonable
inferences that can be drawn therefrom." Nami v. F auver, 82 F.3d 63, 65 (3d Cir. 1996)(citing
Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993)). Additionally, pro se complaints
are held to "less stringent standards than formal pleadings drafted by lawyers" and can only be
dismissed for failure to state a claim when "it appears ‘beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief."’ Haines v. Kerner, 404
U.S. 519, 520-521 (l972)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
III. ANALYSIS
The complaint is brought against Johnson, an individual who was to provide paralegal
services to Talmo. Unfortunately for Talmo, she is not a "state actor" at that term is defined
under § 1983.
To state a claim under 42 U.S.C. §l983, Talmo must allege "the violation of a
right secured by the Constitution or laws of the United States and must show that the
alleged deprivation was committed by a person acting under color of state law." West v.
Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981))
(overruled in part on other grounds Daniels v. Williams, 474 U.S. 327, 330-31 (1986)).
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Case 1:04-cv-00160-Gl\/IS Document 9 Filed 01/17/2006 Page 3 of 4
To act under "color of state law" a defendant must be “clothed with the authority of state
1aw." West, 487 U.S. at 49. Johnson is a private individuals who contracted with Talmo
to provide him with paralegal services. Quite simply, she is not "clothed with the
authority of state law." See Reichley v. Pennsylvania Dep ’t 0f Agric., 427 F .3d 236, 244-
45 (3d Cir. 2005); Biener v. Ca//0, 361 F.3d 206, 216-17 (3d. Cir. 2004). Accordingly,
she is not amenable to suit under § 1983.
Talmo fails to state a § 1983 claim against Johnson. The complaint, therefore, is
dismissed pursuant to 28 U.S.C. § 19l5(e)(2)(B) and § 1915(A)(b)( 1). Talmo’s avenue
of relief for his breach of contract claim lies in state court.
IV. CONCLUSION
For the above stated reasons the court finds that the complaint fails to state a claim
pursuant to 42 U.S.C. § 1983. An appropriate order will be entered dismissing the case
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UN1·I • S TES DISTRIC JUDGE
January _[]_, 2006
Wilmington, Delaware
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Case 1:04-cv-00160-Gl\/IS Document 9 Filed 01/17/2006 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VICTOR W. TALMO, )
)
Plaintiff, )
)
v. ) Civ. N0. 04-160-GMS
)
PARALEGAL JONI L. JOHNSON, )
)
Defendant. )
ORDER
q\
At Wilmington this [7 day of January, 2006, for the reasons set forth in the
Memorandum issued this date Talmo’s complaint is DISMISSED without prejudice pursuant to
28 U.S.C. § l9l5(e)(2)(B) and § l9l5A(b)(l).
ill I I .. T A e`
- wil l F L . i A /. " i Q 'zl
UNITE S AT F DISTRICT DGE D

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