DRESSER et al v. MUNICIPAL REVIEW COMMITTEE INC et al

Filing 15

REPORT AND RECOMMENDED DECISION re 1 Complaint filed by JAY PARKER LUNT DRESSER, MATERIALS RECOVERY SOLUTIONS. Objections to R&R due by 8/22/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

JAY PARKER LUNT DRESSER, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
MUNICIPAL REVIEW COMMITTEE, INC., )
et al.,
)
)
Defendants.

1:18-cv-00172-DBH

RECOMMENDED DECISION UPON SCREENING PLAINTIFF’S COMPLAINT
PURSUANT TO 28 U.S.C. § 1915A
In this action, Plaintiffs1 challenge a plan by Defendants to convert municipal solid
waste into energy at a facility in Hampden, Maine. (Complaint, ECF No. 1; Addendum to
Complaint, ECF No. 4.)
Plaintiff Dresser filed an application to proceed in forma pauperis (ECF No. 9),
which application the Court granted. (ECF Nos. 10/11.) In accordance with the in forma
pauperis statute, a preliminary review of Plaintiffs’ complaint is appropriate. 28 U.S.C. §
1915(e)(2).
Following a review of Plaintiffs’ complaint, I recommend the Court dismiss the
complaint.

1

The caption of the complaint reflects that Plaintiff Dresser has a personal interest in the action, and that
he is sole proprietor of a business, Materials Recovery Solutions, which evidently also has an interest in the
action. Plaintiff is at present detained or incarcerated at the Penobscot County Jail.

STANDARD OF REVIEW
The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure
meaningful access to the federal courts for those persons unable to pay the costs of bringing
an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss
the case at any time if the court determines,” inter alia, that the action is “frivolous or
malicious” or “fails to state a claim on which relief may be granted” or “seeks monetary
relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so
as to spare prospective defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
When considering whether a complaint states a claim for which relief may be
granted, courts must assume the truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although a pro se plaintiff’s complaint is subject to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is
“not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a
claim,” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in
federal court, it is not enough for a plaintiff merely to allege that a defendant acted
unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the
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defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
FACTUAL BACKGROUND
Through his complaint, which Plaintiff styles a “Motion for Writ of Error,” Plaintiff
evidently asks the Court to address certain issues related to the work of Defendant
Municipal Review Committee and to appoint Plaintiff to a management or supervisory
position to establish and monitor a more effective waste management plan. (Complaint at
1 – 3.) Through an addendum to the complaint, Plaintiff also attempts to assert a freedom
of access or negligence claim. (Addendum at 1.) Plaintiff also references the National
Environmental Policy Act (NEPA) and appears to assert a need for an environmental
impact statement under the NEPA. (Id. at 2, 4.)
DISCUSSION
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “It is to
be presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S.
at 377 (citation omitted). “A court is duty-bound to notice, and act upon, defects in its
subject matter jurisdiction sua sponte.” Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir.
2011).
Through his filings, Plaintiff evidently challenges certain conduct of Defendants
regarding the municipal solid waste management services provided in Maine. Plaintiff,
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however, has not asserted any facts that would support a claim within this Court’s subject
matter jurisdiction.
Based on his allegations, Plaintiff appears to attempt to assert a state law negligence
claim. Federal district courts do not have jurisdiction over a state law claim unless the
claim is between citizens of different states and “the matter in controversy exceeds the sum
or value of $75,000.” 28 U.S.C. § 1332(a)(1). For a court to exercise diversity jurisdiction,
there must be “complete diversity of citizenship as between all plaintiffs and all
defendants.” Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008). Here, insofar
as both Plaintiffs and Defendant Municipal Review Committee are alleged to be residents
of Maine, the claim is not within the Court’s diversity jurisdiction.
In addition, to the extent Plaintiff’s submissions can be construed to seek relief
under the federal Freedom of Information Act, Plaintiff also fails to assert a claim within
the Court’s jurisdiction given that the Act applies to federal agencies, 5 U.S.C. § 551(1),
and Defendants are not federal agencies.

Finally, while a citizen may under some

circumstances petition a federal court for judicial review of federal administrative agency
decisions, including decisions under NEPA pertaining to the need for preparation of an
environmental impact statement, 42 U.S.C. § 4332, see, e.g., Scarborough Citizens
Protecting Res. v. U.S. Fish & Wildlife Serv., 674 F.3d 97, 102 (1st Cir. 2012), Plaintiffs
have not identified any federal agency action that is ripe for judicial review.2

2

On August 6, 2018, Plaintiff Dresser filed additional documents, which include certain grievances he has
evidently submitted to the Penobscot County Sheriff’s Office. (ECF No. 14.) I do not construe the filings
to be the assertion of a claim in this action against the Sheriff or the Penobscot County Jail, nor do I consider
the filings to be relevant to the claims asserted in Plaintiffs’ complaint.

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CONCLUSION
Based on the foregoing analysis, after a review pursuant to 28 U.S.C. § 1915(e)(2),
I recommend the Court dismiss Plaintiffs’ complaint.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 8th day of August, 2018.

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