Yamlak v. Henrick Corporation LLC et al

Filing 13

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. ; Denied as moot 5 Motion for Summary Judgment; Denied as moot 7 Motion for Order; Denied as moot 11 Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 7/12/2017.Mailed to pro se party Sitota Yamlak by certified mail ; Certified Tracking Number: 70123460000082626610 (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SITOTA YAMLAK,
Plaintiff,
v.
Case No. 17-2242-DDC-GLR
HENRICK CORPORATION, LLC, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff filed a Complaint pro se on April 26, 2017 against four defendants—Hen[d]rick
Corporation LLC, Nissan Automotive Group, Hendrick Nissan Kansas City, and Robert O.
Jester. Doc. 1. On June 22, 2017, the court issued an Order to Show Cause directed to plaintiff
because his Complaint fails to allege a basis for this court to exercise subject matter jurisdiction.
Doc. 10. The court thus ordered plaintiff to show cause in writing on or before July 12, 2017,
why the court should not dismiss his Complaint for lack of subject matter jurisdiction. Plaintiff
responded to that Order on July 10, 2017. Doc. 12.
Plaintiff also has filed a Motion for Leave to Proceed in forma pauperis. Doc. 3. The
court first addresses that motion below. The court grants that motion because plaintiff has
established that he is unable to pay the required filing fee. Second, the court addresses whether it
may exercise subject matter jurisdiction over this action. It concludes that plaintiff’s Complaint
and his response to the Show Cause Order fail to establish that subject matter jurisdiction exists.
Consequently, the court dismisses this case without prejudice for lack of subject matter
jurisdiction.

I.

Motion for Leave to Proceed in Forma Pauperis

Plaintiff has moved for leave to file this action without payment of fees or costs. Doc. 3.
He has submitted an affidavit of financial status supporting his request. Under 28 U.S.C. §
1915(a)(1), the court may authorize a person to commence an action without prepayment of fees
after he submits an affidavit demonstrating an inability to pay. The court has broad discretion to
grant or deny permission to proceed in forma pauperis. United States v. Garcia, 164 F. App’x
785, 786 n.1 (10th Cir. 2006). But the court cannot act arbitrarily or deny an application on
erroneous grounds. Id. To succeed on a motion for leave to proceed in forma pauperis, “the
movant must show a financial inability to pay the required filing fees.” Id. (quoting Lister v.
Dep’t of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005)).
After reviewing plaintiff’s financial affidavit, the court finds that plaintiff has made a
sufficient showing that he is unable to pay the required filing fee. The court thus grants
plaintiff’s request for leave to file this action without payment of fees, costs, or security under 28
U.S.C. § 1915(a)(1).
II.

Does Subject Matter Jurisdiction Exist?

When a plaintiff proceeds in forma pauperis, the court may review his complaint under
28 U.S.C. § 1915(e)(2). That section authorizes the court to dismiss the case if it determines that
the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B).
The court uses the Fed. R. Civ. P. 12(b)(6) motion-to-dismiss standard to determine
whether it is appropriate to dismiss under § 1915(e)(2)(B)(ii). Kay v. Bemis, 500 F.3d 1214,
1217–18 (10th Cir. 2007). When making this determination, the court accepts as true all well-

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pleaded facts and draws all reasonable inferences from those facts in the plaintiff’s favor.
ASARCO LLC v. Union Pac. R.R. Co., 755 F.3d 1183, 1188 (10th Cir. 2014). The court also
liberally construes plaintiff’s Complaint because he proceeds pro se. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally and held
to a less stringent standard than formal pleadings drafted by lawyers.”). But, at the same time,
the court cannot advocate for a pro se litigant. Id.
Here, plaintiff’s Complaint fails to allege a proper basis for the court to exercise subject
matter jurisdiction. As the court explained in its Show Cause Order (Doc. 10), plaintiff’s
Complaint never pleads clearly either federal question jurisdiction or diversity jurisdiction.
Plaintiff’s Civil Cover Sheet asserts diversity jurisdiction. See Doc. 2. The Civil Cover Sheet
also asserts that plaintiff is a citizen of this state and that defendants are citizens of another state.
Id. But, plaintiff provides no more information about either party’s citizenship. Because
plaintiff has failed to identify the parties’ citizenship, he fails to establish diversity jurisdiction
under 28 U.S.C. § 1332.
In plaintiff’s Response to the Show Cause Order, he explains that this lawsuit arises out
of repairs defendants made to his car. Doc. 12 at 1–2. Plaintiff contends that defendants
engaged in deceptive practices and violated “Kansas Consumer Protection Law.” Id. at 1. He
also accuses defendants of negligence and violations of the Kansas State Constitution. Id. at 2.
But, he asserts now that his lawsuit raises federal question jurisdiction under 28 U.S.C. § 1331,
not diversity jurisdiction under § 1332. As support for this jurisdictional basis, plaintiff contends
that defendants’ actions have violated various amendments to the United States Constitution.
To the extent plaintiff seeks to amend his Complaint to allege federal constitutional
violations against defendants, his purported claims are futile because they fail to state a claim for

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relief. To state a claim for constitutional violations under 42 U.S.C. § 1983, “a plaintiff must
allege the violation of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). Here, plaintiff never alleges that any
defendant is a state actor. And, his Response never asserts any facts that allow to court to infer,
plausibly, that defendants were acting under color of state law under § 1983. Plaintiff’s
Response thus fails to allege a plausible claim for relief under federal law. Plaintiff has not
established that federal question jurisdiction exists here under 28 U.S.C. § 1331.
Because neither plaintiff’s Complaint nor his Response to the Show Cause Order
establish that the court has subject matter jurisdiction over this action, the court dismisses this
action without prejudice for lack of subject matter jurisdiction.
IT IS THEREFORE ORDERED THAT plaintiff’s Motion for Leave to Proceed in
forma pauperis (Doc. 3) is granted.
IT IS FURTHER ORDERED THAT plaintiff’s Complaint is dismissed without
prejudice for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED THAT plaintiff’s Motions for Summary Judgment
(Docs. 5, 11) and Request for Default Judgment (Doc. 7) are denied as moot.
IT IS SO ORDERED.
Dated this 12th day of July, 2017, at Topeka, Kansas
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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