# Smith v. Waffle House Inc. (MAG+)

> District Court, M.D. Alabama · October 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10630212

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** October 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10630212

## How later opinions describe it (automated extraction)

- holding that mail and wire fraud claims pursuant to 18 U.S.C. §§ 1341 and 1342 “do not, in and of themselves, create a private right of action” as the statutes are “‘purely penal’”

## Opinion text

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PETER J. SMITH, )
)
Plaintiff, )
)
) CASE NO. 2:19-cv-1033-WKW-SRW
)
WAFFLE HOUSE, INC., et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1), this case was referred to the undersigned United
States Magistrate Judge for consideration and disposition or recommendation on all pretrial
matters (Doc. 6). Plaintiff Peter J. Smith, proceeding pro se, initiated this lawsuit by filing
a complaint against defendants Waffle House, Inc.; Waffle House; and Walt Ehmer in his
official capacity as Waffle House CEO on December 9, 2019. (Doc. 1). Plaintiff filed a
motion to proceed in forma pauperis (Doc. 2) pursuant to 28 U.S.C. § 1915, which provides
that
any court of the United States may authorize the commencement, prosecution
or defense of any suit, action or proceeding, civil or criminal, or appeal
therein, without prepayment of fees or security therefor, by a person who
submits an affidavit that includes a statement of all assets such [person]
possesses that the person is unable to pay such fees or give security therefor.
Such affidavit shall state the nature of the action, defense or appeal and
affiant’s belief that the person is entitled to redress.
28 U.S.C. § 1915(a)(1). The court granted Plaintiff in forma pauperis status but entered an
order deferring service of process for the purpose of conducting a review of Plaintiff's
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Doc. 7. While the court has determined

that Plaintiff lacks the resources necessary to pay the filing fee, it concludes, upon its
review of the complaint, that Plaintiff’s complaint is due to be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) and (ii). In relevant part, § 1915(e) provides: “the court shall

dismiss the case at any time if the court determines that … the action or appeal … is
frivolous or malicious …[or] fails to state a claim on which relief may be granted ….” 28
U.S.C. § 1915 (e)(2)(B)(i)–(ii).
“Federal Rule of Civil Procedure 12(b)(6) standards govern [a court’s] review of
dismissals under section 1915(e)(2)(B)(ii)[.]” Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997). See also Jones v. Brown, 649 F. App’x 889, 890 (11th Cir. 2016) (citing
Mitchell, supra) (“We review the district court’s dismissal for failure to state a claim for

which relief may be granted pursuant to § 1915(e)(2)(B)(ii) de novo, applying the same
standards that govern Federal Rule of Civil Procedure 12(b)(6).”). In considering a Rule
12(b)(6) motion, the court
must view the complaint in the light most favorable to the plaintiff, accepting
all of the plaintiff’s well-pleaded facts as true. Am. United Life Ins. Co. v.
Martinez, 480 F.3d 1043, 1056–57 (11th Cir. 2007). Pro se pleadings are
liberally construed and held to a less stringent standard than pleadings drafted
by attorneys. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990).
However, in order to survive a motion to dismiss, the plaintiff’s complaint
must contain facts sufficient to support a plausible claim to relief. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).

Id. This court has reviewed plaintiff’s complaint in light of the foregoing principles.
In his complaint, plaintiff alleges a violation of his civil rights pursuant to 42 U.S.C.
§ 1983, violation of the Shepard-Byrd Act, and wire fraud. Doc. 1 at 1–2. He maintains
that after he dined at the Waffle House located at 301 Madison Avenue, Montgomery,
Alabama, the waitress swiped his credit card twice and then manually entered the card
number into the card reader. Id. at 1. Plaintiff says that he was not provided a receipt for
his payment. Id. He asserts that these actions were taken because he is a homeless, Black
male, and his waitress “was not a Black Female.” Id. at 2. Plaintiff cumulatively seeks

compensatory and punitive damages in the amount of $1,000,000. Id.
Plaintiff’s allegations are frivolous, vague, and conclusory, and they fail to allege
facts sufficient to support a plausible claim for relief as required by Iqbal. See Iqbal, 556
U.S. at 678. Moreover, Plaintiff’s claims fail as a matter of law.
In order to state a viable section 1983 claim, the defendant must be an entity that is
subject to suit.1 Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). The law is well
settled that

[t]o state a [viable] claim for relief in an action brought under § 1983, [a
plaintiff] must establish that [he was] deprived of a right secured by the
Constitution or laws of the United States, and that the alleged deprivation
was committed under color of state law.... [T]he under-color-of-state-law
element of § 1983 excludes from its reach “‘merely private conduct, no
matter how discriminatory or wrongful,” … [Consequently,] state action
requires both an alleged constitutional deprivation “caused by the exercise
of some right or privilege created by the State or by a rule of conduct imposed
by the State or by a person for whom the State is responsible,” and that “the
party charged with the deprivation must be a person who may fairly be said
to be a state actor….”

1 Plaintiff is well aware of the law on this matter. Plaintiff has had more than one case dismissed on these
grounds, yet he continues to file such claims. See, e.g., Smith v. Walmart Stores, Inc., No. 2:19-CV-89-
WKW-WC, 2020 WL 2462440, at *1 (M.D. Ala. Apr. 3, 2020), report and recommendation adopted, 2020
WL 2411511 (M.D. Ala. May 12, 2020), appeal dismissed, No. 20-11953-BB, 2020 WL 5049032 (11th
Cir. July 21, 2020); Smith v. Regions Bank, Inc., No. 2:19-CV-213-ECM-GMB, 2019 WL 3209456, at *2
(M.D. Ala. June 12, 2019), report and recommendation adopted, 2019 WL 3208366 (M.D. Ala. July 16,
2019); and Smith v. Game Stop, No. 2:16-CV-129-WKW-WC, 2016 WL 3360673, at *1 (M.D. Ala. Apr.
20, 2016), report and recommendation adopted, 2016 WL 3360699 (M.D. Ala. June 9, 2016).
Thompson v. Upshaw, No. 2:09-CV-214-TMH, 2009 WL 1089685, at *2–3 (M.D. Ala.
Apr. 22, 2009) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999))
(internal citations omitted) (emphasis in original).

Like Plaintiff’s prior cases, the complaint before the court includes no indication
that Defendants Waffle House, Inc.; Waffle House; or Walt Ehmer in his official capacity
as Waffle House CEO are anything other than non-governmental commercial entities, and
no allegations of fact suggest that Defendants acted under color of state law so as to be
subject to liability under 42 U.S.C. § 1983. See Christman v. Walsh, 2011 WL 721302, *3-
4 (11th Cir. Mar. 2, 2011) (unpublished opinion) (citing Focus on the Family v. Pinellas
Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003) and Rowe v. City of Fort

Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002) and finding that “the amended complaint
failed to state a claim against [a private defendant] because it did not include any
allegations showing that [the defendant] acted under color of state law”). See also Bias v.
Crosby, 346 Fed. App’x 455, 456 (11th Cir. 2009) (unpublished opinion) (“Notably, the
‘under-color-of-state-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.’ A private party will be viewed as a
state actor for § 1983 purposes only in rare circumstances, such as when the state has played

an affirmative role by encouraging, conspiring, or acting in concert with the private actor
in the particular conduct underlying the claimant’s civil rights grievance.”) (citations
omitted). Accordingly, Plaintiff has failed to state a § 1983 claim against Defendants.
Even if Plaintiff had properly named a state actor, Plaintiff’s claims still would fail.
Plaintiff asserts claims for wire fraud and a hate crime violation of the Shepard-Byrd Act.
Doc. 1 at 12. Both claims are based upon criminal statutes that provide no private right of
action. See Am. Gen. Life & Acc. Ins. Co. v. Ward, 509 F. Supp. 2d 1324, 1335 (N.D. Ga.
2007) (holding that mail and wire fraud claims pursuant to 18 U.S.C. §§ 1341 and 1342
“do not, in and of themselves, create a private right of action” as the statutes are “‘purely
penal’”)2; Smith, 2016 WL 3360673, at *2 (“Plaintiff does not explain how [d]efendants

could have somehow effected a violation of a federal hate-crime statute and, even if he had
tried, the cited criminal statute does not provide him with a private right of action.”) (citing
Godfrey v. Ross, No. 2:11-2308-WBS-EFB, 2011 WL 6012607, at *5 (E.D. Cal. Dec. 1,
2011) (finding that the Matthew Shepard and James Byrd Hate Crimes Prevention Act does
not provide a private civil right of action and collecting similar cases)).
Finally, Plaintiff does not plead any recoverable damages. He alleges that when he

paid for his meal, the waitress swiped his credit card twice and then manually entered the
information, and that he was not provided with a receipt. Doc. 1 at 1. Plaintiff does not
allege that he was charged multiple times, charged an amount in excess of his bill, or
damaged in any other way.
For all of the reasons stated above, the court concludes that Plaintiff’s complaint is
frivolous and, alternatively, that Plaintiff has failed to state a claim upon which relief could

2 Although Plaintiff does not assert a claim under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), to the extent Plaintiff intended his wire fraud claim to serve as a predicate act to support a RICO
claim, this claim also would fail because Plaintiff alleges a single incident that is not sufficient to establish
an “enterprise” or a “pattern.” Ray v. Spirit Airlines, Inc., 126 F. Supp. 3d 1332, 1339 (S.D. Fla. 2015),
aff’d, 836 F.3d 1340 (11th Cir. 2016) (citations omitted) (“A civil RICO claim requires a demonstration of
the following elements: ‘(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity
(5) that caused injury to business or property.’”).
be granted. Accordingly, the claims against these defendants are due to be dismissed upon
application of 28 U.S.C. §1915(e)(2)(B)(i) and (ii).
Thus, it is the RECOMMENDATION of the Magistrate Judge that this matter be

DISMISSED prior to service of process, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and
(ii).3 It is further
ORDERED that on or before October 16, 2020, Plaintiff may file an objection to
this Report and Recommendation. Any objections filed must specifically identify the
factual findings and legal conclusions in the Magistrate Judge’s Recommendation to which
Plaintiff objects. Frivolous, conclusive or general objections will not be considered by the
District Court.

Failure to file written objections to the proposed findings and recommendations
under 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District
Court of factual findings and legal issues covered in the report and shall “waive the right
to challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions” except upon grounds of “plain error if necessary in the interests of justice.”
11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149
(11th Cir. 1993)(“When the magistrate provides such notice and a party still fails to object

to the findings of fact and those findings are adopted by the district court the party may not

3 The court is recommending dismissal of Plaintiff’s complaint without first giving Plaintiff an opportunity
to amend because it concludes that amendment would be futile—even with amendment, Plaintiff cannot
bring federal civil rights claims under § 1983, any of the other statutes he invokes, against the Waffle House
defendants. Accordingly, leave to amend Plaintiffs’ complaint need not be afforded in this instance. See,
e.g., Cornelius v. Bank of Am., NA, 585 F. App’x 996, 1000 (11th Cir. 2014) (“While a pro se litigant
generally must be given at least one opportunity to amend his complaint, a district judge need not allow an
amendment where amendment would be futile.”). Further, Plaintiff will be permitted to file objections to
the findings set forth in this Recommendation, and thus will have an additional opportunity to be heard
prior to any dismissal of the complaint.
challenge them on appeal in the absence of plain error or manifest injustice.”); Henley v.
Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
Done, on this 1st day of October, 2020.

/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10630212. Public record. Not legal advice.