Kelly v. Schrumpf et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel is DENIED as moot. [ECF No. 3] An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 2/23/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICKIE JOE KELLY,
Plaintiff,
v.
JASON SCHRUMPF, et al.,
Defendants.

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No. 1:18-CV-18 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on review of the file after pro se plaintiff’s filing of his
response to the Show Cause Order. For the following reasons, this case will be dismissed
without prejudice for lack of subject matter jurisdiction.
On February 1, 2018, the Court issued a Show Cause Order asking plaintiff to show
cause why this non-diverse medical malpractice case should not be dismissed for lack of federal
subject matter jurisdiction. See ECF No. 5. On February12, 2018, plaintiff responded that he
believes the Court has supplemental jurisdiction over this state law matter because he has also
filed a separate pending social security complaint for judicial review of the decision of the
Commissioner of Social Security, see Kelly v. Berryhill, No. 1:18-CV-24 JAR (E.D. Mo. filed
Feb. 5, 2018).
Title 28 U.S.C. § 1367 governs supplemental jurisdiction. It states, in relevant part:
(a) . . . [I]n any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States
Constitution.

Plaintiff’s separate complaint for judicial review of the Commissioner of Social
Security’s adverse ruling, and this medical malpractice action are not “so related . . . that they
form part of the same case or controversy.” Plaintiff’s causes of action arise out of different
facts and form two separate cases and controversies. The Court does not have subject matter
jurisdiction over plaintiff’s state law tort claim between non-diverse parties. The Court will
dismiss this action for lack of subject matter jurisdiction. In the absence of a federal claim, the
Court notes that plaintiff may file his claim in the appropriate state court.
IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for lack
of subject matter jurisdiction.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel is DENIED as
moot. [ECF No. 3]
An Order of Dismissal will accompany this Memorandum and Order.

Dated this 23rd day of February, 2018.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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