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McKinney v. Commonwealth of Virginia

United States District Court, W.D. Virginia, Big Stone Gap Division

June 29, 2015

DON W. McKINNEY, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, United States District Defendant.

OPINION

JAMES P. JONES, District Judge.

In this pro se action under 42 U.S.C. § 1983, the plaintiff seeks to proceed in form a pauperis. Based on the affidavit filed by the plaintiff in other cases filed by him, I will allow the Complaint to be filed without payment of the filing fee, pursuant to 28 U.S.C. § 1915(a)(1). However, upon examination of the Complaint, I find that it is without merit and will dismiss it.

The plaintiff complains of a long-ago criminal conviction in state court, the subject of numerous pro se suits filed in this court over the years.[1] To state a c1aim under § 1983, the plaintiff must allege that the violation was committed by a "person" acting under the color of state law. 42 U.S.C. § 1983. States and governmental entities that are considered arms of the state for Eleventh Amendment purposes are not "persons''under § 1983. Will v. Mich. Dep't of state Police, 491 U.S. 58, 70 (1989).

The plaintiff fails to state a claim on which relief may be granted, and accordingly, his action will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

The plaintiff is cautioned that further actions filed in this court without merit may subject him to sanctions, including an injunction against such filings.

A separate order will be entered herewith.


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