Matthews v. O'Bryan

Filing 11

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 2/27/2013; because Plaintiff has failed to establish that this Court has subject-matter jurisdiction over this action, the Court will dismiss this action by separate Order.cc: plaintiff pro se, counsel (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
ELAINE MATTHEWS

PLAINTIFF

v.

CIVIL ACTION NO. 3:12CV-720-S

MICHAEL A. O’BRYAN, D.V.M.

DEFENDANT

MEMORANDUM OPINION
Plaintiff Elaine Matthews filed the instant pro se action proceeding in forma pauperis.
This matter is now before the Court on the initial review pursuant to 28 U.S.C. § 1915(e) and
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth herein, the
Court will dismiss the action.1
I. SUMMARY OF CLAIMS
Plaintiff sues Defendant Michael A. O’Bryan, D.V.M., “for a minimum of $100,000 in
damages by reason of his having negligently, maliciously, recklessly, and/or incompetently
having inflicted upon plaintiff aesthetic injury and psychological injuries . . . .” The complaint
concerns Defendant’s treatment of a white tail doe named Briana, to which Plaintiff states that
she is “deeply bonded.” Plaintiff states that Defendant violated her “civil and contractual rights
while defendant egregiously and unconscionably acted under color of State Law[].” Plaintiff
states that Defendant acted under color of state law by virtue of his being a veterinarian licensed
by the Commonwealth of Kentucky.
According to the complaint, Defendant illegally removed the deer from where it resided
for over ten years in Bernheim Forest “to a disgusting enclosure in a grossly false, dishonest,

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Defendant also filed a motion to dismiss (DN 5). The Court remanded the motion from
the docket pending screening of the complaint under § 1915(e) and McGore, 114 F.3d at 608-09.
(DN 6).

misleading, and fraudulent business called Broadbent Wildlife Sanctuary . . . .” Plaintiff states
that Defendant was on parole for felony convictions. She states that Defendant’s act of
removing the deer from Bernheim Forest “was illegal by reason of the material fact that there is a
contract involving Briana as the third party beneficiary between plaintiff, the Isaac W. Bernheim
Foundation, and Mark K. Wourms, the executive director of the Isaac W. Bernheim
Foundation.” Plaintiff states that the deer was not permitted to be removed from Bernheim
Forest under the contract. She also states that the removal of the deer was a violation of a court
order by Bullitt County Judge Elise Givhan Spainhour and that Defendant was in contempt of
court.
Plaintiff states that Defendant “did unreasonably cripple Briana from his negligence, his
incompetence, his arrogance, his ignorance, his gross and grotesque uncaring, his wanton
recklessness, and/or his malice.” She states that the deer is now “permanently crippled” due to
Defendant’s actions. She states that the deer’s hooves grew incorrectly and that Defendant did
not trim or treat them correctly. Plaintiff also states that the deer’s enclosure is inadequate and
dangerous. She states that she “suffered aesthetic injury seeing the dreadful enclosures in which
Briana was kept and suffered . . . .” She states that she also suffered psychological injuries by
seeing the deer given inadequate care. Plaintiff further states that she suffers with chronic
depression and that Defendant is aware of this, which makes his failure to communicate with her
concerning the deer egregious and offensive.
II. ANALYSIS
Pro se pleadings are to be held to a less stringent standard than formal pleadings drafted
by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110

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(6th Cir. 1991). However, “[o]ur duty to be ‘less stringent’ with pro se complaints does not
require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979)
(citation omitted). And this Court is not required to create a claim for Plaintiff. Clark v. Nat’l
Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would
require the Court “to explore exhaustively all potential claims of a pro se plaintiff, [and] would
also transform the district court from its legitimate advisory role to the improper role of an
advocate seeking out the strongest arguments and most successful strategies for a party.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
It is axiomatic that federal district courts are courts of limited jurisdiction, and their
powers are enumerated in Article III of the Constitution. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994); Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003) (“[I]t is
well established that federal courts are courts of limited jurisdiction, possessing only that power
authorized by the Constitution and statute.”). “Jurisdiction defines the contours of the authority
of courts to hear and decide cases, and, in so doing, it dictates the scope of the judiciary’s
influence.” Douglas v. E.G. Baldwin & Assoc. Inc., 150 F.3d 604, 606 (6th Cir. 1998), overruled
on other grounds by Cobb v. Contract Transp., Inc., 452 F.3d 543, 548-49 (6th Cir. 2006).
Moreover, federal courts have an independent duty to determine whether they have jurisdiction
and to “police the boundaries of their own jurisdiction.” Douglas, 150 F.3d at 607 (citing
Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir. 1997)).
The party who seeks to invoke a federal district court’s jurisdiction bears the burden of
establishing the court’s authority to hear the case. Kokkonen, 511 U.S. at 377. There are two
ways a federal district court may have jurisdiction over a case. The first is through federal

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question jurisdiction under 28 U.S.C. § 1331, and the second is through diversity jurisdiction
under 28 U.S.C. § 1332.
Federal question jurisdiction
In the present case, Plaintiff has not established federal question jurisdiction under 28
U.S.C. § 1331. Plaintiff’s complaint is devoid of any factual allegations that would establish any
federal cause of action against Defendant. The only reference to a federal statute is in the
complaint’s first footnote, wherein Plaintiff states, “The Commonwealth licensing this defendant
is the nexus for a Section 1983 action . . . .” In the body of her complaint, she states that
Defendant violated her “civil and contractual rights” acting under “color of State Law[].”
To the extent that Plaintiff is attempting to assert a 42 U.S.C. § 1983 action, § 1983
creates a cause of action against any person who, under color of state law, causes the deprivation
of a right secured by the Constitution or the laws of the United States. A claim under § 1983
must therefore allege two elements: (1) the deprivation of federal statutory or constitutional
rights by (2) a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988);
Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001). Absent either element, no § 1983
claim exists. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
First, Plaintiff has not stated that she was deprived of any federal statutory or
constitutional right. Secondly, Defendant is not an employee or official of any state or municipal
government. While Plaintiff claims that Defendant acted under color of state law by virtue of his
being a veterinarian licensed by the Commonwealth of Kentucky, a party is not deemed a state
actor by being licensed, monitored, or regulated by the state. See, e.g., Kottmyer v. Maas, 436
F.3d 684, 688 (6th Cir. 2006) (“[O]ur precedent indicates that the mere fact that a hospital is

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licensed by the state is insufficient to transform it into a state actor for purposes of section
1983.”); Crowder v. Conlan, 740 F.2d 447, 451 (6th Cir. 1984) (“State regulation of a private
entity, even if it is ‘extensive and detailed,’ is not enough to support a finding of state action.”
(quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974)). As nothing in the complaint
demonstrates the Defendant was acting color of state law, Plaintiff has not stated a claim under
42 U.S.C. § 1983.
Moreover, Plaintiff cites Animal Legal Def. Fund v. Glickman, 154 F.3d 426 (D.C. Cir.
1998), in support of her argument that she has standing by reason of her suffering an aesthetic
injury. However, to establish this Court’s jurisdiction, Plaintiff still must allege a federal cause
of action. See id. at 431 (holding that “‘a plaintiff’s grievance must arguably fall within the zone
of interests protected or regulated by the statutory provision or constitutional guarantee invoked
in the suit.’”) (quoting Bennett v. Spear, 520 U.S. 154, 162 (1997)). Here, Plaintiff invokes no
federal statutory or constitutional provision on which she can rely.
Further, Plaintiff’s breach of contract and negligence claims are state-law, not federal
claims, and any claims for violation of a court order or contempt of court cannot be brought in
this Court as this Court did not issue the order. For these reasons, Plaintiff fails to demonstrate
jurisdiction under 28 U.S.C. § 1331.
Diversity jurisdiction
Additionally, Plaintiff fails to establish diversity jurisdiction under 28 U.S.C. § 1332. To
give rise to jurisdiction under § 1332, there must be complete diversity of citizenship, and the
amount in controversy must exceed “the sum or value of $75,000, exclusive of interest and
costs.” 28 U.S.C. § 1332. The complaint and summons tendered by Plaintiff indicate that both

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she and Defendant are citizens of Kentucky. Plaintiff therefore fails to establish diversity
jurisdiction.
III. CONCLUSION
Accordingly, because Plaintiff has failed to establish that this Court has subject-matter
jurisdiction over this action, the Court will dismiss this action by separate Order.
Date:

February 27, 2013

C al R Smpo I , ei J d e
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Plaintiff, pro se
Counsel of record
4411.010

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