Desjardins v. Lasda et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gilbert Charles Desjardins
v. 	Case No. 22-cv-155-SE
Norman Lasda, President,
Barnstormers, et al.
Report and Recommendation
Gilbert Charles Desjardins, who is proceeding pro se and in
forma pauperis, brought suit against the officers of an
organization identified as Barnstormers, alleging that they
refused to allow Desjardins to sing with the Barnstormers
because of a “transgender issue.” 	The complaint is referred for
preliminary review pursuant to 28 U.S.C. § 1915(e)(2).
Standard of Review
The court conducts preliminary review of complaints filed
in forma pauperis. 	See § 1915(e)(2). 	Claims may be dismissed
sua sponte, if, among other things, the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. See id. 	In considering whether the complaint states a
claim, the court determines if, stripped of legal conclusions
and with all reasonable inferences construed in plaintiff's
favor, the complaint contains “sufficient factual matter,
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accepted as true, to state a claim to relief” upon which relief
can be granted. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). In undertaking this review, the court is
mindful that pro se complaints must be construed liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Discussion
Desjardin’s complaint provides few facts. 	Desjardin
alleges Norman Lasda, President of the Barnstormers, said that
Desjardin was not welcome to sing with the Barnstormers and that
all of the officers agreed with that decision because of
Desjardin’s “transgender issue.” 	Desjardin states that the
basis of the claim against the Barnstormer officers is gender
discrimination in violation of the Fourteenth Amendment.
Because there is no private right of action under the
Fourteenth Amendment, Fourteenth Amendment violations must be
addressed pursuant to 42 U.S.C. § 1983. 	See Campbell v. Bristol
Community College, 16-11232-FDS, 2018 WL 457172, at *2 (D. Mass.
Jan. 17, 2018). 	“Section 1983 provides a private right of
action against any person who, while acting under color of state
law, deprives another (or causes another to be deprived) of
rights secured either by the Constitution or by federal law.”
Cruz-Arce v. Mgmt. Admin. Servs. Corp., 19 F.4th 538, 543 (1st
Cir. 2021) (citing § 1983).
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To state a claim under § 1983, a plaintiff must allege
sufficient facts to show that the defendants were acting “under
color of state law” when they caused a deprivation of a federal
right. 	Id. 	Actions under color of state law generally are
actions by governments or government officials or employees and
not actions by private parties. 	Id.
Desjardin has not alleged facts that show that the
Barnstormer officers named in this were acting under color of
state law when they would not let him sing with the
Barnstormers. 	Nothing suggests that the Barnstormers is a
government agency or that the defendants are government
officials. 	Instead, it appears that the defendants are private
parties, which precludes a claim pursuant to § 1983.
Conclusion
For the foregoing reasons, the complaint (doc. no. 1)
should be dismissed on preliminary review for failure to state a
claim.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
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554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court's order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 8, 2022
cc: 	Gilbert Charles Desjardin, pro se
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