Dougherty v. Dougherty et al
Filing
25
OPINION AND ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION by Chief Judge Marcia S. Krieger on 4/6/17. (pglov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 17-cv-00399-MSK
JAMES EDWARD DOUGHERTY,
Plaintiff,
v.
JAMES ANTHONY DOUGHERTY,
DARCY JANNE TENORIO,
HUNTER & ASSOCIATES, P.A.,
DR. SHERRY RISCH, and
SHARON BRUCE,
Defendants.
______________________________________________________________________________
OPINION AND ORDER DISMISSING ACTION FOR LACK OF SUBJECT-MATTER
JURISDICTION
______________________________________________________________________________
THIS MATTER comes before the Court sua sponte for determination of the Court’s
subject matter jurisdiction. See Webb v. Smith, 632 Fed.Appx. 957, 960 (10th Cir. 2015) (court
may consider the absence of subject-matter jurisdiction sua sponte).
Plaintiff James Edward Dougherty commenced this action pro se. His Complaint
contains somewhat scattershot, half-formed allegations. All those that involve the named
Defendants concern events relating, directly or indirectly, to Mr. Dougherty’s divorce in the
Florida state courts.
This Court clearly lacks subject-matter jurisdiction over the claims against these
Defendants due to lack of diversity of citizenship pursuant to 28 U.S.C. § 1332. The Complaint
identifies Mr. Dougherty, Defendant James Anthony Dougherty, and Defendant Sharon Bruce as
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all being residents1 of Colorado. 28 U.S.C. § 1332(a)(1); Grynberg v. Kinder Morgan Energy
Partners, LP, 805 F.3d 901, 905 (10th Cir. 2015) (“Diversity jurisdiction requires complete
diversity—no plaintiff may be a citizen of the same state as any defendant”).
The Court also lacks federal question jurisdiction pursuant to 28 U.S.C. § 1331, insofar as
none of Mr. Dougherty’s claims against the named Defendants appear to invoke any federal law.
His claims against these Defendants primarily sound in state common-law slander (against
Anthony and Defendant Risch) , embezzlement (against Defendant Bruce), perhaps negligence
or breach of a fiduciary duty (against Defendant Hunter & Associates), and claims seeking to set
aside domestic relations orders issued by the Florida court (against Defendant Tenorio).
Discharging the Court’s obligations under Haines v. Kerner, 404 U.S. 519, 520-21
(1972), to liberally construe Mr. Dougherty’s pro se Complaint, the Court has looked beyond his
specific allegations to several pages of exhibits attached thereto. The Court can infer that Mr.
Dougherty is apparently serving a sentence for a criminal conviction and is currently on
probation under the supervision of a state or county Probation Department in Moffat County.
The exhibits also reflect that in February 2017, Mr. Dougherty was issued a criminal summons in
Moffat County for the crime of Harassment, C.R.S. § 18-9-111. (The exhibit does not contain
the narrative portion describing the incident.) That summons may be related to disagreements or
difficulties that Mr. Dougherty may be having with two of his neighbors, both of whom are
police officers in Craig, Colorado.
Further light is shed on Mr. Dougherty’s concerns by other filings in this action. Mr.
Dougherty has moved (# 7) to have this Court “issue an order to prevent the Craig Police
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The Court will assume for purposes of this order, without necessarily finding, that the
parties’ state of residence is also their state of citizenship. Whitelock v. Leatherman, 460 F.2d
507, 514 n. 14 (10th Cir. 1972).
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Department from trespassing and harassment at properties” Mr. Dougherty owns and “to dismiss
[the] current Harassment charge issued by the Craig Police Department” against him. More
recently, Mr. Dougherty filed a second motion (# 16) requesting that the Court “provide relief
from” certain state court proceedings in Moffat County that appear to be requests by the state to
revoke Mr. Dougherty’s probation. See also Docket # 22.
Although the Court is required to construe Mr. Dougherty’s pro se pleadings liberally,
the Court is not obligated to – and indeed, should not -- act as Mr. Dougherty’s advocate or to
rewrite his Complaint to assert claims that were not originally presented. Barnett v. Hargett, 174
F.3d 1128, 1133 (10th Cir. 1999). None of the named Defendants appear to be state actors or
public officials in any capacity, there is no allegation of violation of any federal or constitutional
right, and nothing in the record suggests that Mr. Dougherty’s interactions with police or
probation officers in Craig or in Moffat County would give rise to a cognizable claim under 42
U.S.C. § 1983. 2
In the absence of allegations which if true would give rise to subject matter jurisdiction,
dismissal of this action is appropriate under Fed. R. Civ. P. 12(b)(1). Moreover, because it does
not appear that Mr. Dougherty can assert any cognizable claims over which this Court would
have subject-matter jurisdiction, the Court declines to reflexively grant Mr. Dougherty leave to
amend his Complaint. If Mr. Dougherty believes he can adequately plead claims that are
cognizable in this Court, he may move to reopen this action upon the tender of a proposed
Amended Complaint that demonstrates that fact.
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Even assuming, as discussed below, that the ongoing matters involving Mr. Dougherty
and the police in Craig, Colorado could give rise to some cognizable federal claim, such claim
would be entirely unrelated to the claims against the named Defendants, such that the Court
would decline to exercise supplemental jurisdiction over the existing claims pursuant to 28
U.S.C. § 1367(c)(2).
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Accordingly, the Court DISMISSES all claims in Mr. Dougherty’s Complaint (# 1)
against all named Defendants for lack of federal subject-matter jurisdiction. There being no
colorable claims to pursue at this time, the Clerk of the Court shall close this case.
Dated this 6th day of April, 2017.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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