United States District Court, E.D. Pennsylvania
WALTER C. BYRNE, III
WHOLE FOODS MARKET, INC., AUSTIN, TX and WHOLE FOODS MARKET, INC. WAYNE, PA
Walter C. Byrne, III, acting pro se and proceeding
in forma pauperis, brings this civil action against
Whole Foods Market, Inc., for barring him from entering its
store in Wayne, Pennsylvania. He claims Whole Foods did so
because it accused him of inappropriate contact with a female
employee. He asserts a federal constitutional claim under
section 1983 and a state law claim for defamation.
Whole Foods is not a state actor and Byrne's defamation
claim is time-barred, we shall dismiss his complaint.
February 28, 2015, a manager at Whole Foods informed Byrne
that a female employee, identified as EB, had complained that
she was uncomfortable around Byrne. The manager asked him not
to approach EB and to avoid her checkout lane. Byrne alleges
that he “was stunned but agreed to adhere to the
stipulations.” Nevertheless, when he returned home, he
called EB and left a voicemail. He sent her an email three
days later, stating “there shouldn't be a problem
because I'd rather be 100 miles away then [sic] in your
March 6, 2015, Byrne received a letter from Whole Foods with
the subject “NO TRESPASS ORDER, ” informing him
that because he contacted EB despite being asked not to do
so, he was prohibited from entering the store. It warned
Byrne that employees had been instructed to notify the police
to have him removed if he appeared in or near the store.
letter responding, Byrne acknowledged he had telephone and
email contact with EB during the prior seven months. He
admitted to contacting EB on February 28, 2015, and calling
her twice on March 6, 2015-the date he received the
letter-“because [he] was wound up and needed to
complain.” He claimed that although he questioned the
legality of the prohibition, he would never contact EB again
and that it was his “intention never to step inside
[Whole Foods] again.”
February 24, 2017, Byrne filed this civil action against
Whole Foods. He attempts to assert a claim for violation of
his due process rights, apparently pursuant to 42 U.S.C.
§ 1983, and a state law claim for defamation. He seeks
“cancellation” of the no trespass order, an
injunction enjoining Whole Foods employees from calling the
police if he is on the premises, and $150, 000 in damages.
plaintiff is proceeding in forma pauperis, 28 U.S.C.
§§ 1915(e)(2)(B)(i) and (ii) apply. The complaint
must be dismissed if it is frivolous or fails to state a
claim. A complaint is frivolous if it “lacks an
arguable basis either in law or in fact, ” Neitzke
v. Williams, 490 U.S. 319, 325 (1989), and is legally
baseless if it is “based on an indisputably meritless
legal theory.” Deutsch v. United States, 67
F.3d 1080, 1085 (3d Cir. 1995).
survive dismissal, a complaint “must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
“[M]ere conclusory statements do not suffice.”
Id. Additionally, we may dismiss claims based on an
affirmative defense that is obvious on the face of the
complaint. See Fogle v. Pierson, 435 F.3d 1252, 1258
(10th Cir. 2006); cf. Ball v. Famiglio, 726 F.3d
448, 459 (3d Cir. 2013), abrogated on other grounds by
Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015). We
must construe the pro se litigant's allegations
liberally. Higgs v. Att'y Gen., 655 F.3d 333,
339 (3d Cir. 2011).
establish a claim under section 1983, a plaintiff must allege
facts, which if proven, establish: (1) the deprivation of a
right secured by the Constitution or the laws of the United
States; and (2) that the person depriving plaintiff of the
right acted under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988) (citations omitted);
Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010)
has sued Whole Foods, a private company. Whole Foods is not a
state actor. In addition, a section 1983 action can be
brought only against persons. Therefore, Byrne has ...