1:26-cv-00215•Fernandez v. Home Depot U.S.A., Inc.
Full text
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION GENE FERNANDEZ, Plaintiff, v. THE HOME DEPOT U.S.A., INC., Defendant. ______________________________/ Hon. Hala Y. Jarbou Case No. 1:26-cv-215 SUPPLEMENTAL REPORT AND RECOMMENDATION This matter is before me again pursuant to the Court’s February 27, 2026 Order (ECF No. 15) for review of Plaintiff Gene Fernandez’s amended complaint pursuant to 28 U.S.C. § 1915(e)(2). Having reviewed the amended complaint, I once again recommend that the Section 1983 claim be dismissed for failure to state a claim and that the Court decline to exercise supplemental jurisdiction over Fernandez’s state-law claims. To summarize the original allegations, Fernandez alleges that sometime prior to February 19, 2023, Home Depot employees reported to law enforcement that he committed theft when he failed to return a rental vehicle. He further alleges that the report was made without verification of readily available rental records. As a result, Fernandez was arrested and detained for some period of time and charged in the Muskegon County Circuit with one count of failure to return rented property -- $1,000.00 or more but less than $20,000.00. The criminal charge was subsequently dismissed because Penske Truck Leasing, which apparently handles Home Depot vehicle rentals, confirmed that Fernandez never rented or possessed the vehicle. (ECF No. 5 at PageID.25.) As a result of Home Depot’s allegation, Fernandez was required to file a mandatory regulatory complaint and disclosure with the State of Michigan to defend his cannabis license during renewal review. (Id.) Case 1:26-cv-00215-HYJ-SJB ECF No. 17, PageID.<pageID> Filed 03/05/26 Page 1 of 4
2 The previous Report and Recommendation cited cases for the proposition that a private company such as Home Depot does not become a state actor for purposes of Section 1983 merely by reporting criminal activity: [I]t is . . . established law that a private citizen does not become a state actor merely by reporting suspected criminal activity to law enforcement. See Powell v. City of Radcliff, No. 3:19-CV-386, 2020 WL 6704581, at *3 (W.D. Ky. Nov. 13, 2020) (“As both the Sixth Circuit and other courts in this district have concluded when applying the state compulsion test, reporting a crime and providing information to law enforcement is insufficient to establish a state actor under Section 1983.” (collecting cases)); Oliver v. Murphy, No. 19-1286, 2019 WL 7195323, at *2 (W.D. Tenn. Dec. 26, 2019) (“Reporting a crime, even falsely, does not transform a private citizen into a state actor.” (citing Lansing v. City of Memphis, 202 F.3d 821, 831 (6th Cir. 2000)); Easley v. Dietrich, No. 1:11-cv-299, 2011 WL 1811065, at *2 (W.D. Mich. May 12, 2011) (“Individuals who report crimes and testify as witnesses are not state actors for the purpose of § 1983 claims.”) (citing Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009)); Wade v. Bradley Cnty. Sheriff’s Office, No. 1:10-cv-191, 2010 WL 5439774, at *4 (E.D. Tenn. Dec. 27, 2010) (“Because Mr. Ownby was not acting under color of law when reporting Plaintiff’s alleged crime and because, in general, private individuals do not act under color of state law, are not state actors, and are not amenable to a § 1983 suit . . . Plaintiff has stated no cause of action under 42 U.S.C. § 1983 against Mr. Ownby.”); see also Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (“We know of no case in which the report of a state crime is action under color of state law under § 1983. The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §§ 1983 or 1985.”). (Id. at PageID.27–28.) The amended complaint’s allegations are similar to those in the original complaint, with a slight modification. In his motion to amend, Fernandez argued that his proposed amendment clarifies “facts demonstrating direct, on-scene participation by Home Depot employees during the arrest, supporting a joint-action theory under 42 U.S.C. § 1983.” (ECF No. 14 at PageID.38.) The amended complaint contains the following allegations: (1) Fernandez was arrested inside a Home Depot Store in Muskegon, Michigan: and (2) a “Home Depot employee served a trespass notice to [Fernandez] while he was in police custody.” (ECF No. 16 at PageID.45.) Case 1:26-cv-00215-HYJ-SJB ECF No. 17, PageID.<pageID> Filed 03/05/26 Page 2 of 4
3 Contrary to Fernandez’s argument, his new allegation does not demonstrate “joint action” or a conspiracy. The Sixth Circuit has observed that a private party may be held liable under Section 1983 for willfully participating in “joint action” with state agents through a conspiracy or concerted action. Weser v. Goodson, 965 F.3d 507, 516 (6th Cir. 2020). A civil conspiracy under Section 1983 is “an agreement between two or more persons to injure another by unlawful action.” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985)). The plaintiff must show the existence of a single plan, that the alleged coconspirators shared in the general conspiratorial objective to deprive the plaintiff of a federal right, and that an overt action committed in furtherance of the conspiracy caused an injury to the plaintiff. Hensley, 693 F.3d at 695; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Moreover, a plaintiff must plead a conspiracy with particularity, as vague and conclusory allegations unsupported by material facts are insufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 565–66 (2007) (recognizing that allegations of conspiracy must be supported by allegations of fact that support a “plausible suggestion of conspiracy,” not merely a possible one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008). Here, Fernandez fails to allege a conspiracy or concerted action. He alleges no fact demonstrating an agreement with a single plan. Rather, he alleges, at most, independent action by the police and Home Depot. The police apparently arrested Fernandez based on Home Depot’s report of criminal activity. As set forth above, this did not transform Home Depot into a state actor. For its part, Home Depot merely served a trespass notice on Fernandez pursuant to Mich. Comp. Laws. § 750.552(1)(a), which prohibits a person from entering “the lands or premises of another without lawful authority after having been forbidden to do so by the owner or occupant or the agent of the owner or occupant.” In addition, it is illegal to “[r]emain without lawful authority on Case 1:26-cv-00215-HYJ-SJB ECF No. 17, PageID.<pageID> Filed 03/05/26 Page 3 of 4
4 the land or premises of another after being notified to depart by the owner or occupant or the agent of the owner or occupant.” Mich. Comp. Laws § 750.552(1)(b). As the owner of the premises, Home Depot had the right to “trespass” Fernandez from its store with or without the police present and regardless of whether Fernandez was in police custody at the time. He thus fails to state a Section 1983 claim against Home Depot. CONCLUSION For the foregoing reasons, I recommend that the Court dismiss Fernandez’s Section 1983 claim set forth in the first amended complaint for failure to state a claim upon which relief can be granted. I further recommend that the Court decline to exercise supplemental jurisdiction over the state-law claims and dismiss them without prejudice pursuant to 28 U.S.C. § 1367(c)(3). The Court must also decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). Good faith is judged objectively, Coppedge v. United States, 369 U.S. 438, 445 (1962), and an appeal is not taken in good faith if the issue presented is frivolous, defined as lacking an arguable basis either in fact or law. See Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001). For the same reasons that I recommend dismissal of the action, I discern no good faith basis for an appeal and recommend that, should Fernandez appeal this decision, the Court assess the $605.00 appellate filing fee pursuant to Section 1915(b)(1), see McGore, 114 F.3d at 610-11. Date: March 5, 2026 /s/ Sally J. Berens SALLY J. BERENS U.S. Magistrate Judge NOTICE OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Case 1:26-cv-00215-HYJ-SJB ECF No. 17, PageID.<pageID> Filed 03/05/26 Page 4 of 4
Wondering how this text applies to your situation?
Free consultation, no commitment
Describe your situation. Our team will contact you by email about your consultation.
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.