United States District Court, M.D. Pennsylvania
November 3, 2005.
SAL ALGIERI Plaintiff
PENNSYLVANIA POWER & LIGHT CO. Defendant.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On July 29, 2005, Plaintiff Sal Algieri filed this pro se
action against the Pennsylvania Power & Light Co. ("PPL"),
seeking an injunction requiring PPL to turn on his electricity
and money damages for violating his rights. (Pl.'s Compl., Dkt.
Entry 1.) Plaintiff has moved to proceed in forma pauperis.
(Id. at 1.) Plaintiff raises three arguments: (1) PPL violated
his civil rights, (2) PPL violated his rights under the Americans
with Disabilities Act ("ADA"), and (3) PPL illegally transferred
debts discharged in bankruptcy to his post-bankruptcy account.
(Id. at 2.) These are not valid claims for relief in this
Court. First, his civil rights claim fails because PPL did not
act under the color of state law. Second, he has not stated an
actionable claim under the Americans with Disabilities Act.
Finally, his bankruptcy claim should properly be raised in a
bankruptcy court proceeding. Accordingly, Plaintiff's civil
rights and ADA claims will be dismissed as legally frivolous. His
bankruptcy claim will be dismissed without prejudice. Plaintiff is a retired veteran aged seventy years old. (Id.
at 2.) He indicates that he is permanently disabled due to leg
and lower back pain. (Id. at 23-26.) Plaintiff asserts that a
United States Bankruptcy Judge in the Middle District of Florida
discharged his debts on May 5, 2004. (Id. at 5.) Afterwards, he
continued to receive electric services from PPL. According to
Plaintiff, PPL transferred debts discharged in bankruptcy to his
post-bankruptcy account. (Id. at 1.) He claims PPL has
continuously harassed him to pay his bill. Because of financial
hardship, he has been unable to pay his bill. On July 6, 2005,
PPL shut off his electricity. (Id. at 19.) He alleges that
PPL's actions have caused him stress, duress, and emotional
sickness. (Id.) He seeks $7,500.00 in damages and an injunction
requiring PPL to turn on his electricity. (Id.)
Plaintiff has moved to proceed in forma pauperis under
28 U.S.C. § 1915. Accordingly, this Court should dismiss the case if
it determines that the action (i) "is frivolous or malicious" or
(ii) "fails to state a claim on which relief may be granted." §
The first issue presented in Plaintiff's complaint is whether
PPL violated his civil rights under 42 U.S.C. § 1983. Plaintiff
must establish that PPL acted "under the color" of state law to
state an actionable § 1983 claim.*fn1
It is well-settled that a privately-owned utility, like PPL, is
not sufficiently connected to the State for its conduct to be considered state action. Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 358-59 (1974) (nearly
identical facts to this case). Plaintiff's complaint does not
cite any special circumstances that might indicate state action
in this case. Therefore, Plaintiff does not state an actionable
civil rights claim.
The second issue presented in Plaintiff's complaint is whether
PPL violated his rights under the ADA. It is unclear why
Plaintiff believes PPL violated his rights under the
ADA,*fn2 but presumably his claim is that he is being denied
access to services operated by a private entity. See
42 U.S.C. §§ 12101, 12181-12189. The ADA protects disabled individuals
against discrimination. Plaintiff, however, fails to articulate a
claim that PPL discriminated against him based on his disability.
Instead, Plaintiff seems to suggest that the ADA provides blanket
protection to a disabled person against an electric company
shutting off his electricity when that customer fails to pay his
bills. This is inaccurate. Therefore, Plaintiff's ADA claim will
be dismissed as legally frivolous.
Finally, Plaintiff argues that PPL illegally transferred debts
discharged in bankruptcy to his post-bankruptcy account. If true,
this is an actionable claim. See 11 U.S.C. § 524. This claim,
however, is not properly presented by way of an action in this
Court. Instead, Plaintiff should present this claim in an
appropriate Bankruptcy Court. Accordingly, Plaintiff's bankruptcy claim will be dismissed without prejudice to any right
he may have to seek relief in the appropriate Bankruptcy Court.
For the reasons set forth above, IT IS HEREBY ORDERED THAT
Plaintiff's complaint (Dkt. Entry 1) is DISMISSED WITHOUT
PREJUDICE. The Clerk of Court is directed to mark this matter
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