Brown v. Brody et al

Filing 8

MEMORANDUM AND ORDER - Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORNELIUS BROWN,
Plaintiff,
v.
KIRSTIN BRODY, et al.,
Defendants.

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4:11CV3217

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on November 30, 2011. (Filing No.
1.) Plaintiff has previously been given leave to proceed in forma pauperis. (Filing
No. 7.) The court now conducts an initial review of the Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint on November 30, 2011, against two Habitat for
Humanity employees, Kirstin Brody and Obie Dortch (“Dortch”), and Omaha Police
Detective Chad Kavars. (Filing No. 1 at CM/ECF p. 1.) Plaintiff is currently
confined in the Douglas County Correctional Center in Omaha, Nebraska. (Id.; see
also Docket Sheet.)
Condensed and summarized, Plaintiff alleges that on June 14, 2011, Dortch
escorted him to the “back dock” of the Habitat for Humanity Restore to discuss
allegations that he had sexually assaulted someone. (Filing No. 1 at CM/ECF p. 3.)
Balinda Nunn (“Nunn”) and her boyfriend accompanied Dortch and Plaintiff to the
back dock. (Id.) At the back dock, Nunn’s boyfriend assaulted Plaintiff and Nunn
spit on him. (Id.) Later, another Habitat for Humanity worker, Tim, called the police.
(Id.) The police later took Plaintiff downtown and questioned him about the sexual
assault. (Id. at CM/ECF pp. 3-4.)

Plaintiff states that he told the police that Nunn and her boyfriend assaulted
him, but nothing has been done. (Id. at CM/ECF p. 4.) Plaintiff asks the court to
bring charges against Nunn and her boyfriend. (Id.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion
thereof that states a frivolous or malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A.
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).

III.

DISCUSSION OF CLAIMS
A.

Plaintiff’s Request to Initiate Criminal Charges
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A private plaintiff cannot force a criminal prosecution because the “authority
to initiate a criminal complaint rests exclusively with state and federal prosecutors.”
See Mercer v. Lexington Fayette Urban Cnty. Gov’t., No. 94-6645, 1995 WL 222178,
at *1 (6th Cir. Apr. 13, 1995) (unpublished order); see also Parkhurst v. Tabor, 569
F.3d 861, 867 (8th Cir. 2009) (quoting United States v. Batchelder, 442 U.S. 114, 124
(1979) (“Whether to prosecute and what charge to file or bring before a grand jury are
decisions that generally rest in the prosecutor’s discretion.”)).
Here, Plaintiff asks the court to initiate criminal charges against Nunn and her
boyfriend. (Filing No. 1 at CM/ECF pp. 3-4.) Because the court does not have the
authority to force a criminal prosecution, Plaintiff’s request to initiate criminal
charges fails to state a claim upon which relief may be granted.
B.

Subject Matter Jurisdiction

“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Subject matter jurisdiction
is proper pursuant to 28 U.S.C. § 1332, commonly referred to as “diversity of
citizenship” jurisdiction. For purposes of 28 U.S.C. § 1332, “diversity of citizenship”
means that “the citizenship of each plaintiff is different from the citizenship of each
defendant.” Ryan v. Schneider Nat’l Carriers, Inc., 263 F.3d 816, 819 (8th Cir.
2001). In addition, the amount in controversy must be greater than $75,000.00 for
diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a).
Here, Plaintiff does not allege that his citizenship is different from the
citizenship of each Defendant. (Filing No. 1.) Further, Plaintiff does not seek
monetary damages. (Id. at CM/ECF p. 4.) Thus, Plaintiff has failed to establish
diversity of citizenship jurisdiction as a basis for jurisdiction in this matter.

However, subject matter jurisdiction is also proper where a plaintiff asserts a
“non-frivolous claim of a right or remedy under a federal statute,” commonly referred
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to as “federal question” jurisdiction. Nw. S. Dakota Prod. Credit Ass’n v. Smith, 784
F.2d 323, 325 (8th Cir. 1986). Plaintiff does not set forth any allegations that could
be liberally construed to violate a constitutional right or any federal statute. Keeper
v. King, 130 F.3d 1309, 1314 (8th Cir. 1997). In short, Plaintiff does not allege that
Defendants deprived him of a right secured by the Constitution or laws of the United
States or that the alleged deprivation was committed under “color of state law.” West,
487 U.S. at 48; Buckley, 997 F.2d at 495. Rather, Plaintiff asserts claims, and seeks
relief, pursuant to state law, such as claims relating to assault and negligence.
Accordingly, the court lacks subject matter jurisdiction, and the Complaint is
dismissed without prejudice.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Complaint (filing no. 1) is dismissed without prejudice.

2.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 10th day of January, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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