Wright v. Torres et al

Filing 5

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/2/15. 3 Motion and Affidavit for Leave to Proceed Under 28 U.S.C. 1915 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02232-LTB
JEFFREY P. WRIGHT,
Plaintiff,
v.
JOSE ANGEL TORRES;
TOP FLIGHT SECURITY;
LUCY AGUILLAR, Burger King Cashier; and
BURGER KING CORPORATION,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Jeffrey P. Wright, is a prisoner incarcerated at the Freemont Correctional
Facility in Canon City, Colorado. He initiated this action by filing a Complaint (ECF No. 1)
in which he alleged that he suffered an assault and resulting injuries following an incident
that occurred at a Burger King restaurant where he had lost his cell phone. Mr. Wright
does not assert a jurisdictional basis for his Complaint, nor does he assert any specific
claims.
On October 13, 2015, Magistrate Judge Gordon P. Gallagher issued an order to Mr.
Wright directing him to show cause, in writing, within thirty (30) days, why the Complaint
and this action should not be dismissed for lack of subject matter jurisdiction. (ECF No. 4).
Plaintiff has not responded to the Order to Show Cause. Nor has he filed anything in this
action.

The Court construes the Complaint filed by Mr. Wright liberally because he is
proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
a pro se party must follow the same procedural rules that govern other litigants. Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). For the reasons discussed below, this action
will be dismissed for lack of subject matter jurisdiction.

“Federal courts are courts of

limited jurisdiction; they must have a statutory basis for their jurisdiction.” Morris v. City of
Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). There are two statutory bases for federal
subject matter jurisdiction: diversity jurisdiction under 28 U.S.C. § 1332 and federal
question jurisdiction under 28 U.S.C. § 1331.
The federal courts have an independent obligation to determine whether subject
matter jurisdiction exists. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
Because federal courts are courts of limited jurisdiction, there is a presumption against its
existence. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
A federal district court may therefore raise the objection that it lacks jurisdiction on its own
initiative, at any stage of the litigation. See Fed. R. Civ. P. 12(h)(3) (“Whenever it appears
by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.”) see also McAlester v. United Air Lines, Inc., 851
F.2d 1249, 1252 (10th Cir. 1988) (The issue of subject matter jurisdiction may be raised sua
sponte by the court at any time during the course of the proceedings.).
Mr. Wright fails to allege a statutory basis to invoke the Court’s federal question
jurisdiction, pursuant to 28 U.S.C. § 1331. Moreover, to the extent he would assert
jurisdiction under 42 U.S.C. § 1983, his allegations do not support the claim. “[T]o state a
§ 1983 claim, a plaintiff must ‘allege the violation of a right secured by the Constitution and
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laws of the United States, and must show that the alleged deprivation was committed by
a person acting under color of state law.’” Bruner v. Baker, 506 F.3d 1021, 1025-26 (10th
Cir. 2007) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). Mr. Wright’s allegations that
he suffered an assault on the premises of a private entity and by private entities may
support state law claims, but do not demonstrate state action or a constitutional deprivation,
so as to implicate the Court’s federal question jurisdiction.
This Court may exercise diversity jurisdiction over a state law claim, pursuant to 28
U.S.C. § 1332, if a plaintiff presents a claim between parties of diverse citizenship that
exceeds the required jurisdictional amount, currently $75,000. See 28 U.S.C.
§ 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). The Complaint
requests $3,250,000 in damages.

Notwithstanding, to demonstrate federal jurisdiction

pursuant to § 1332, allegations of diversity must be pleaded affirmatively. See Penteco
Corp. Ltd. Partnership-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991)
(citations omitted); see also Fed. R. Civ. P. 8(a)(1) (pleading must contain "a short and
plain statement of the grounds for the court’s jurisdiction"). Mr. Wright’s allegations that
both he and Defendants Torres and Aguillar are residents of Colorado are insufficient to
invoke this Court’s diversity jurisdiction. Accordingly, it is
ORDERED that the Complaint and this action are DISMISSED without prejudice for
lack of subject matter jurisdiction. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status will be denied for
the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Wright

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files a notice of appeal he must also pay the full $455 appellate filing fee or file a motion to
proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within
thirty days in accordance with Fed. R. App. P. 24. It is
FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed Under 28
U.S.C. 1915 (ECF No. 3) is DENIED as moot.
DATED December 2, 2015, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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