Russell v. McMurry

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
ERIC DEMOND RUSSELL 	PLAINTIFF
v. 	Civil No. 6:25-cv-06099-TLB-MEF
WAYNE McMURRY 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Eric Demond Russell, filed this action alleging civil rights violations under 42
U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. The case was directly assigned
to the undersigned Magistrate Judge pursuant to General Order 2024-02, but not all parties to the
action have consented to the jurisdiction of the undersigned. See 28 U.S.C. § 636(c). Accordingly,
for the purpose of preservice review pursuant to 28 U.S.C. § 1915A(a), the case will automatically
be reassigned to Chief United States District Timothy L. Brooks and referred to the undersigned
for a report and recommendation pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3).
I. 	BACKGROUND
Plaintiff has filed this lawsuit against his former landlord, Wayne McMurry. He alleges in
his Amended Complaint that in June 2025 Mr. McMurry evicted Plaintiff from his home and
subsequently removed all of Plaintiff’s personal belongings from those premises, despite Plaintiff
having paid a year’s worth of rent to Mr. McMurry in October 2024. 	(ECF No. 10, pp. 4–5).
Plaintiff also alleges that he was placed under arrest in June 2025, though he does not explain
whether, or how, this is connected to his eviction. (Id.). Plaintiff claims that his eviction and the
removal of his property from his home was a deprivation of his liberty and property in violation
of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.
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II. 	LEGAL STANDARD
Under § 1915A, the Court is obliged to screen the case prior to service of process being
issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are
frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). An action is malicious when the allegations are known to be false, or
it is undertaken for the purpose of harassing or disparaging the named defendants rather than to
vindicate a cognizable right. 	Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987); In re
Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988). A claim fails to state a claim upon which relief
may be granted if it does not allege “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).
“In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we
hold ‘a pro se complaint, however inartfully pleaded ... to less stringent standards than formal
pleadings drafted by lawyers.’” 	Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). This means “that if the essence of an allegation is
discernable, even though it is not pleaded with legal nicety, then the district court should construe
the complaint in a way that permits the layperson’s claim to be considered within the proper legal
framework.” Jackson, 747 F.3d at 544 (cleaned up). The complaint must, however, still allege
specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
III. 	ANALYSIS
It is very well established that “[o]nly a state actor can face § 1983 liability.” Doe v. North
Homes, Inc., 11 F.4th 633, 637 (8th Cir. 2021). “Private individuals who commit torts, i.e., civil
wrongs, against other private parties are generally not acting under color of state law when they
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commit those acts.” Blair v. Anderson, 2006 WL 2128010, at *2 (D. Neb. July 26, 2006). But “in
a few limited circumstances,” a private entity or private individual “can qualify as a state actor,”
including “when the private entity [or individual] performs a traditional, exclusive public
function,” “when the government compels the private entity [or individual] to take a particular
action,” and “when the government acts jointly with the private entity [or individual].” Halleck v.
Manhattan Cmty. Access Corp., 587 U.S. 802, 809 (2019).
Here, Plaintiff’s lawsuit is brought exclusively against a private individual: his former
landlord. The actions of which Plaintiff complains are his landlord allegedly wrongfully evicting
him and wrongfully removing his personal belongings from the premises. 	These are classic
examples of civil wrongs. They might constitute, for example, the breach of a contract, or a tort
such as conversion or trespass to chattels. 	But they are not violations of the United States
Constitution, for the simple reason that Plaintiff’s landlord is not a state actor. The only hint of
state action found anywhere in Plaintiff’s Amended Complaint is that he was arrested at some
point around the time when he was evicted. But there is no explanation of what, if anything, these
events have to do with each other—much less how Plaintiff’s arrest would transform his landlord
into an agent of the state. Therefore, Plaintiff’s Amended Complaint fails to state a claim upon
which relief may be granted.
IV. 	CONCLUSION
Accordingly, it is RECOMMENDED that: (1) the case be dismissed pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted; (2) Plaintiff is warned
that, in the future, this dismissal may be counted as a strike for purposes of 28 U.S.C. § 1915(g)
and thus, the Clerk is directed to place a § 1915(g) strike flag on the case for future judicial
consideration; and (3) the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this dismissal would not be taken in good faith.
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Referral Status: This case should not remain referred because all matters have been
recommended for dismissal in this Report and Recommendation.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 7th day of January 2026.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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