Kislyak v. Nebraska State et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff's Complaint (filing 1 ) is dismissed without prejudice. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVEL KISLYAK,
Plaintiff,
v.
NEBRASKA STATE, and 49
OTHER STATES, et al.,
Defendants.

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4:12CV3042

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on March 5, 2012. (Filing 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing
6.) The Court now conducts an initial review of the Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint against the State of Nebraska and “49 Other
States.” (Filing 1.) Plaintiff’s Complaint is very difficult to decipher. As best as
the Court can tell, Plaintiff alleges an unknown individual recently used his
identification to withdraw money and/or write checks from Plaintiff’s bank
account. (Id. at CM/ECF pp. 2-3.) Plaintiff did not authorize these withdrawals
and therefore believes that someone has stolen his identity. He requests that the
Court provide him a “completely” new identity and provide him with a new
“social security number, first and last names with middle name, driver license
number, U.S. passport number, airframe and power plant mechanic license, pilot
license and etc.” (Id. at CM/ECF p. 1.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The Court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).
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).
In addition, to state a claim under 42 U.S.C. § 1983, a plaintiff must allege
a violation of rights protected by the United States Constitution or created by
federal statute and also must show that the alleged deprivation was caused by
conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42,
48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
III.

DISCUSSION OF CLAIMS

The Court has carefully reviewed the Complaint. As stated above,
Plaintiff’s allegations are difficult to decipher. The allegations which the Court
can decipher do not nudge any claim across the line from conceivable to
plausible. Indeed, Plaintiff does not set forth any specific actions taken by
Defendants which violate any constitutional right or support a claim under 42
U.S.C. § 1983 or any other federal statute. Keeper v. King, 130 F.3d 1309, 1314

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(8th Cir. 1997). Rather, Plaintiff alleges actions taken by a non-Defendant
individual that, even with the most liberal construction, arise pursuant to state
law only, such as claims relating to conversion. 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. Accordingly,
Plaintiff’s Complaint fails to state a claim upon which relief may be granted and
must be dismissed.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Complaint (filing 1) is dismissed without prejudice.

2.

A separate Judgment will be entered in accordance with this
Memorandum and Order.

DATED this 18th day of April, 2012.
BY THE COURT:
s/ John M. Gerrard
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,
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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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