Reed et al v. Ellison et al

Filing 8

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Patricia Ann Reed, directing Clerk of Court to file 2 Complaint IFP/Prisoner, filed by Charles Adam Fiechtner, Sr, John Reginald Reed, Patricia Ann Reed, and ORDER Setting: ( Amended Pleadings due by 11/10/2011.) Signed by Jeremiah C. Lynch on 10/12/2011. (TCL, ) Modified on 10/12/2011 to reflect copy mailed to Reed this date (APP, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
JOHN REGINALD REED,
PATRICIA ANN REED, and
CHARLES ADAM FIECHTNER, SR.,1

CV 11-102-M-DWM-JCL

Plaintiffs,

ORDER

vs.
MISSOULA HOUSING AUTHORITY
EMPLOYEES: JOHN ELLISON,
AMELIA LYON, and MARY MELTON,
Defendants.
_____________________________________________
I.

INTRODUCTION
Plaintiff Patricia Reed, proceeding pro se, has filed a Motion to Proceed In

Forma Pauperis. Reed submitted a declaration that makes the showing required by
28 U.S.C. § 1915(a). Because it appears she lacks sufficient funds to prosecute
this action IT IS HEREBY ORDERED that Reed’s Motion to Proceed In Forma
Pauperis is GRANTED. This action may proceed without prepayment of the

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On October 5, 2011, the Court entered its recommendation that this action
be dismissed as to Plaintiffs John Reed and Charles Fiechtner, Sr. Thus, this
Order addresses only claims advanced by Plaintiff Patricia Reed.
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filing fee, and the Clerk of Court is directed to file Reed’s lodged Complaint as of
the filing date of her request to proceed in forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(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).
The Court will review Reed’s pleadings to consider whether this action can
survive dismissal under the provisions of section 1915(e)(2), or any other
provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th
Cir. 2005).

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II.

PLAINTIFF’S ALLEGATIONS
Plaintiff Patricia Reed commenced this action complaining about her

housing circumstances, and the housing assistance — or alleged lack of assistance
— provided by Defendants. Reed alleges Defendants have engaged in misconduct
and mismanagement during the course of performing their duties as employees of
the Missoula Housing Authority. Reed complains that although she had requested
that she be placed in a rental house, Defendants instead temporarily placed her in
housing as a co-tenant with her father, John Reed, and another co-tenant, Charles
Fiechtner, Sr. Reed further complains that Defendants later coerced her to sign
documents for purposes of “evicting” Charles Fiechtner, Sr. Reed proceeds to
allege that Defendants committed numerous abusive and criminal acts in
connection with the performance of their jobs assisting Reed, her father, and
Fiechtner with their housing needs.
III.

DISCUSSION
Because Reed is proceeding pro se the Court must construe her pleading

liberally, and the pleading is held "to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See
also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
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a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
A. Jurisdiction
In addition to the grounds for dismissal set forth in 28 U.S.C. § 1915(e)(2)
above, to avoid dismissal Reed’s Complaint must set forth sufficient allegations to
invoke the jurisdiction of this Court. Fed. R. Civ. P. 8(a)(1).2
Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute[.]... 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 v. Guardian Life Ins. of America, 511 U.S. 375, 377 (1994) (citations
omitted). A plaintiff bears the burden to establish jurisdiction. Farmers Ins. Ex. v.
Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990).
Furthermore, the federal courts are obligated to independently examine their
own jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). And
a district court may dismiss an action sua sponte whenever it appears that

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Pro se litigants are “bound by the rules of procedure.” Ghazali v. Moran,
46 F.3d 52, 54 (9th Cir. 1995).
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jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3); Fiedler v. Clark, 714 F.2d 77, 789 (9th Cir. 1983).
A federal court’s jurisdiction is generally limited to cases involving
diversity of citizenship (28 U.S.C. § 1332), a federal question (28 U.S.C. § 1331),
or cases in which the United States is a party (28 U.S.C. §§ 1345 and 1346).
Sections 1345 and 1346 are not applicable in this case because the United States is
not a party to this action.
1. Diversity Jurisdiction is Absent
Diversity jurisdiction under 28 U.S.C. § 1332(a) requires complete diversity
of citizenship between the plaintiff and each of the defendants. Williams v. United
Airlines, Inc., 500 F.3d 1019, 1025 (9th Cir. 2007) (citing Exxon Mobil Corp. v.
Allapattah Services, Inc., 545 U.S. 546, 553 (2005)). Each plaintiff must be a
citizen of a different state than each of the defendants. Morris v. Princess Cruises,
Inc. 236 F.3d 1061, 1067 (9th Cir. 2001). To properly invoke diversity jurisdiction
of the court a plaintiff must affirmatively allege the citizenship of the parties to the
action. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
It does not appear Reed is invoking diversity jurisdiction because Reed does
not identify the citizenship of any party involved in this action. Absent allegations

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of citizenship, the Court’s diversity jurisdiction under 28 U.S.C. § 1332 is not
properly invoked in this case.
2. Federal Question Jurisdiction
Liberally read, Reed’s Complaint appears to be invoking federal question
jurisdiction under 28 U.S.C. § 1331. However, Reed fails to set forth a clear basis
for federal question jurisdiction under 28 U.S.C. § 1331. Although Reed refers
generally to constitutional or civil rights violations in the caption of her
Complaint, the pleading does not expressly plead any cause of action arising under
any specific provision of the United States Constitution, or the laws or treaties of
the United States as required for jurisdiction under § 1331. If Reed intends to
plead a cause of action under the United States Constitution for a violation of her
civil rights, then she must identify the specific constitutional right or rights she
alleges Defendants violated.
Additionally, Reed must identify Defendants as an entity or individuals
against whom a viable federal cause of action can be asserted. The Court
recognizes that Reed’s allegations purportedly name a local governmental entity,
or an arm thereof (the Missoula Housing Authority), and three individual
Defendants who are officers or employees of the Missoula Housing Authority. In
light of Reed’s reference to a governmental entity, the Court must consider
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whether her possible claims against the Defendants give rise to any federal claim
which, in turn, would be a predicate basis for federal subject matter jurisdiction.
In considering Reed’s allegations against the Defendants identified in this
action, the Court finds the allegations could be liberally construed to assert a claim
under 42 U.S.C. § 1983. Section 1983 states, in part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured[.]
42 U.S.C. § 1983. Section 1983 is the vehicle through which a plaintiff can
present claims under federal law against a state or local government official or
employee if the plaintiff can establish that the official or employee was acting
under color of state law and deprived the plaintiff of a federal right.
Reed’s allegations fail to set forth sufficient allegations to state a claim for
relief under § 1983. She has failed to set forth factual allegations describing how
Defendants, acting under color of state law, deprived her of any right under either
the United States Constitution or federal law. The Court will, however, afford
Reed an opportunity to amend her allegations to state a federal claim.

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B. Short and Plain Statement of Jurisdiction, Claims and Relief
Reed is advised that Rule 8(a) of Federal Rules of Civil Procedure requires
“a short and plain statement of the grounds for the court’s jurisdiction,” “a short
and plain statement of the claim showing that the pleader is entitled to relief,” and
“a demand for the relief sought.” Fed. R. Civ. P. 8(a). For purposes of stating a
claim for relief, a pleading need only “give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (internal quotations and citations omitted).
Reed must provide short and plain statements advising the Court of the
following:
(1) what it is that the Missoula Housing Authority and the individual
Defendants each did or failed to do; and
(2) what injury Reed suffered as a result of each Defendant’s conduct.
Additionally, Reed must set forth factual allegations establishing this
Court’s jurisdiction. Specifically, Reed shall expressly plead facts establishing
that her claims arise under the United States Constitution or some other federally
protected right. To the extent possible, Reed shall identify the specific federal
right she believes was violated by the conduct of each Defendant.3
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If Reed intends to invoke diversity jurisdiction she shall affirmatively
allege the citizenship of each party to this action.
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IV.

CONCLUSION
Based on the foregoing, the Court finds Reed’s Complaint, as presently

pled, is subject to dismissal for lack of jurisdiction, and for failure to state a claim
on which relief could be granted. In view of Reed’s pro se status, however, the
Court will afford her an opportunity to amend her allegations to cure the defects
noted in this Order.
ACCORDINGLY, IT IS HEREBY ORDERED that on or before
November 10, 2011, Reed shall file an amended complaint. The Clerk of Court is
directed to provide Reed with a form for filing an amended complaint. Pursuant to
Fed. R. Civ. P. 8(a), Reed’s amended complaint shall set forth a short and plain
statement of (1) her claims against each individual defendant showing that she is
entitled to relief, and (2) the grounds for the court’s jurisdiction over this action.
At all times during the pendency of this action, Reed shall immediately
advise the Court of any change of address and its effective date. Such notice shall
be captioned “NOTICE OF CHANGE OF ADDRESS.” Failure to file a NOTICE
OF CHANGE OF ADDRESS may result in the dismissal of the action for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b).
Reed is advised that her failure to prosecute this action, to comply with the
Court’s orders, or to comply with the Federal Rules of Civil Procedure may also
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result in a recommendation that this case be dismissed with prejudice pursuant to
Fed. R. Civ. P. 41(b). The Court may dismiss this case under Rule 41(b) sua
sponte under certain circumstances. See, e.g., Link v. Wabash Railroad Co., 370
U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest
Serv., 403 F.3d 683, 689 (9th Cir. 2005).
DATED this 12th day of October, 2011.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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