Beverly v. Overland Police Dept. et al

Filing 6

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff's complaint is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge E. Richard Webber on 10/2/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HERBERT CHARVELLE BEVERLY,
Plaintiff,
v.
OVERLAND POLICE DEPARTMENT,
et al.,
Defendants.

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No. 4:17-cv-2194-DDN

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Herbert Charvelle Beverly for
leave to proceed in forma pauperis in this civil action. Upon consideration of the financial
information provided with the application, the Court finds that plaintiff is unable to pay any
portion of the filing fee, and will grant the motion. Furthermore, based upon review of the
complaint, the Court finds this action should be dismissed.
The Complaint
Plaintiff brings this action against defendants Overland Police Department and Access
Automotive. Plaintiff does not indicate the basis of this Court’s jurisdiction, and he does not
claim that the parties are diverse. Plaintiff did check boxes indicating that the nature of this
lawsuit is Real Property, and Fraud. In setting forth the grounds for filing this case in federal
court, plaintiff writes:
Access Automotive dismantled my tie rod end on my car and wanted me to pay
$180.00 to put back together. The Overland Police Department forced me to pay
Access Automotive $25.00 dollars after they dismantled my car.
(Docket No. 1 at 1).

For his statement of claim, plaintiff states that he took his car to Access Automotive for a
wheel alignment, and the mechanic there told him that he broke one of the tie rod ends because
they had been installed incorrectly. Plaintiff called his own mechanic, who visited Access
Automotive to investigate.

Plaintiff’s mechanic then removed the car from the Access

Automotive lot, and showed plaintiff where Access Automotive had dismantled a tie rod end.
Plaintiff’s mechanic reconnected it, fixing the problem. While this was going on, Access
Automotive called the Overland Police Department and said plaintiff was stealing $25.00. The
Overland Police Department made plaintiff pay Access Automotive $25.00. As relief, plaintiff
seeks $100,000.00 from both defendants.
Discussion
Federal courts are courts of limited, not general, jurisdiction. Thomas v. Basham, 931
F.2d 521, 522 (8th Cir. 1991). A federal district court’s jurisdiction arises, in large part, from
two sources. First, a district court “has original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Second, a district court
has jurisdiction over civil actions where the matter in controversy exceeds $75,000, and the suit
is between citizens of different states or a foreign country. 28 U.S.C. § 1332.
In this case, plaintiff does not allege a claim that invokes federal jurisdiction. He does
not invoke federal question jurisdiction, does not mention a federal statute, and does not plead
facts that would allow this Court to construe his claims as arising under a federal statute. Federal
question jurisdiction exists only when a federal question is presented on the face of the
complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Plaintiff has not plead
federal diversity jurisdiction either, because he has not alleged (nor does it appear) that the

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parties are diverse. See 28 U.S.C. § 1332; see also Walker v. Norwest Corp., 108 F.3d 158, 161
(8th Cir. 1997) (plaintiff has the burden to plead citizenship of parties when attempting to invoke
diversity jurisdiction). Finally, even if plaintiff had invoked this Court’s jurisdiction by bringing
this action pursuant to 42 U.S.C. § 1983, the complaint would be subject to dismissal because
Access Automotive is not a state actor, and the Overland Police Department is not an entity
subject to suit under § 1983. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (1992)
(police departments are “not juridical entities suable as such.”).

Although the Court must

liberally construe plaintiff’s complaint, the Court will not create facts or construct claims that
have not been alleged. Even pro se litigants are obligated to plead specific facts and proper
jurisdiction, and abide by the Federal Rules of Civil Procedure. See McNeil v. U.S., 508 U.S.
106, 113 (1993).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s complaint is DISMISSED without
prejudice. A separate order of dismissal will be entered herewith.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 2nd day of October, 2017.

E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

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