United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Jim Navarro filed a complaint against defendants alleging a
violation of his constitutional rights. (Docket 1).
Defendants filed a motion to dismiss the complaint pursuant
to Fed.R.Civ.P. 12(b)(6). (Docket 12). For the reasons stated
below, defendants' motion to dismiss is granted.
assert five grounds for dismissal of plaintiff's
complaint. (Docket 12). Those grounds are summarized as
1. Because there is no state action alleged, there is no
claim under 42 U.S.C. § 1983;
2. Because defendants are not a public entity, there is no
claim under Title II of the Americans with Disabilities Act
3. The complaint fails to state a claim under Title VI of the
Civil Rights Act;
4. The complaint fails to state a claim under the Age
Discrimination Act of 1975; and
5. There is no right of private action under 18 U.S.C.
§§ 371, 1341 or 1343.
(Docket 12 at p. 1). Mr. Navarro resists defendants'
motion. (Dockets 20 & 22).
12(b)(6) provides for dismissal if the plaintiff fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). In evaluating the defendants' Rule 12(b)(6)
motion, the court accepts as true all of the factual
allegations contained in plaintiff's complaint and grants
all reasonable inferences in favor of plaintiff as the
nonmoving party. Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ”) (citing Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009). See also Crooks v.
Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (the court must
review “a Rule 12(b)(6) motion to dismiss for failure
to state a claim, accepting the facts alleged in the
complaint as true and granting all reasonable inferences in
favor of the plaintiff, the nonmoving party.”)
(brackets omitted). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide
the ‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do[.]” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
“[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679.
Mr. Navarro is proceeding pro se, his pleading must
be liberally construed and his complaint, “however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citation omitted).
The factual allegations are summarized as follows:
1. Mr. Navarro, an elderly person, had the electrical
services to his residence disconnected without advance notice