Fernandez v. Home Depot U.S.A., Inc.

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.)
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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.)
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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
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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).
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