Stewart v. Oursland

Filing 8

MEMORANDUM AND ORDER ON INITIAL REVIEW - Stewart shall have 30 days to amend his Complaint to set forth a short and plain statement of the grounds for the court's jurisdiction and to file sufficient evidence with the court showing that the amount in controversy is greater than $75,000.00, the jurisdictional amount. I reserve the right to conduct a further review of Stewart's claims pursuant to 28 U.S.C. § 1915(e)(2) after Stewart addresses the matters set forth in th is Memorandum and Order on Initial Review. Stewart must keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal of this matter without further notice. Stewart's Summ ary of Plaintiff Complaint, construed in part as a motion to appoint counsel, (Filing No. 7 ) is denied without prejudice to reassertion. Ordered by Senior Judge Warren K. Urbom. (Pro Se Case Management Deadline set for 8/17/2012: deadline for Stewart to amend.) (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CRUSE STEWART,
Plaintiff,
v.
KEVIN OURSLAND, Attorney at
Law,
Defendant.

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4:12CV3070

MEMORANDUM
AND ORDER ON INITIAL
REVIEW

The plaintiff, Cruse Stewart (“Stewart”), filed his Complaint in this matter on
April 10, 2012, (filing no. 1.) and I gave Stewart leave to proceed in forma pauperis
on May 5, 2012. (Filing No. 6.) An initial review of Stewart’s complaint has been
made to determine whether summary dismissal is appropriate under 28 U.S.C. §
1915(e)(2).
I.

SUMMARY OF COMPLAINT

Stewart, who is currently incarcerated at the Nebraska State Penitentiary, (Id.
at CM/ECF p. 9) filed his complaint against one defendant, Kevin Oursland
(“Oursland”). (Filing No. 1.)
Condensed and summarized, Stewart alleges that he entered into an attorneyclient relationship with Oursland. (Id. at CM/ECF p. 4.) Stewart and Oursland
agreed that Stewart would pay Oursland a $5,000.00 retainer fee, and Oursland
agreed to represent Stewart in his criminal case. (Id. at CM/ECF pp. 4-5.) Stewart
states Oursland appeared with Stewart several times in court. (Id. at CM/ECF p. 5.)
Oursland later contacted Stewart and informed him that he had moved out of the state
and that Stewart would need to pay a different attorney to represent him. (Id. at
CM/ECF pp. 5-6.) Stewart alleges Oursland failed to perform the services for which

he was paid (id. at CM/ECF p. 6.) and Stewart seeks monetary damages in the amount
of $800,000.00 for violations of his civil rights. (Id. at CM/ECF p. 7.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

I am required to review in forma pauperis complaints to determine whether
summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). I 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).
Pro se plaintiffs 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, 70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (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).
Liberally construed, Stewart here alleges federal constitutional claims. 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).
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III.

DISCUSSION OF CLAIMS

I must determine whether subject-matter jurisdiction is proper in this matter.
See Fed. R. Civ. Pro. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”) The Federal Rules
of Civil Procedure state that a pleading stating a claim for relief must contain “a short
and plain statement of the grounds for the court’s jurisdiction, unless the court has
jurisdiction and the claim needs no jurisdictional support.” Fed. R. Civ. Pro. 8(a)(1).
Here, Stewart has not produced a “statement of the grounds for the court’s
jurisdiction” and, as discussed below, I cannot determine whether jurisdiction is
proper based on the information set forth in the complaint.
A.

Federal-Question Jurisdiction

Subject-matter jurisdiction is proper where a plaintiff asserts “[a] non-frivolous
claim of a right or remedy under a federal statute,” commonly referred to as “federal
question” jurisdiction. Northwest South Dakota Prod. Credit Ass’n v. Smith, 784
F.2d 323, 325 (8th Cir. 1986). Under 28 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution or laws of the United States and must
show that the deprivation of that right was committed by a person acting under color
of state law. West v. Atkins, 487 U.S. 42, 48 (1988). “[T]he Courts of Appeals are
agreed that a lawyer representing a client is not, by virtue of being an officer of the
court, a state actor ‘under color of state law’ within the meaning of § 1983. Polk
Cnty. v. Dodson, 454 U.S. 312, 318 (1981); see also Myers v. Vogal, 960 F.2d 750
(8th Cir. 1992) (holding attorneys who represented plaintiff in criminal proceedings,
whether appointed or retained, did not act under color of state law and, thus, were not
subject to suit under § 1983); Harmon v. Hamilton Cnty. Court of Common Pleas, 83
F. App’x 766, 767 (6th Cir. 2003) (holding that private attorneys did not act under
color of state law in prior litigation); Dunning v. Yuetter, 12 F. App’x 282, 284 (6th

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Cir. 2001) (holding that criminal defense attorneys do not act under color of state law
for purposes of § 1983).
Here, Stewart does set forth any allegations that could be liberally construed
as violating a constitutional right or any federal statute. To the extent Stewart
attempts to assert a claim under § 1983, Stewart does not allege that Oursland is a
state actor. Indeed, it is clear from Stewart’s allegations that Oursland was Stewart’s
privately-retained criminal defense attorney, not a state actor. In addition, Stewart
does not allege that Oursland somehow conspired with state actors to deprive him of
his constitutional rights. Rather, the crux of Stewart’s argument is that Oursland did
not fulfill his contractual obligation to Stewart. (Filing No. 1 at CM/ECF p. 6.)
Accordingly, Stewart’s allegations do not establish that a federal-question jurisdiction
exists in this matter.
B.

Diversity of Citizenship Jurisdiction

Subject matter jurisdiction may also be 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) (citation omitted). In addition, the
amount in controversy must be greater than $75,000.00 for diversity of citizenship
jurisdiction. 28 U.S.C. § 1332(a).
Where a complaint “alleges a sufficient amount in controversy to establish
diversity jurisdiction, but . . . the court questions whether the amount alleged is
legitimate, the party invoking federal jurisdiction must prove the requisite amount by
a preponderance of the evidence.” Trimble v. Asarco, Inc., 232 F.3d 946, 959 (8th
Cir. 2000) (quotation omitted) (abrogated on other grounds by Exxon Mobil Corp.
v. Allapattah Servs., Inc., 545 U.S. 546 (2005)). In addition, “[n]o presumptive
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truthfulness attaches to the plaintiff’s allegations, and the existence of disputed
material facts will not preclude the trial court from evaluating for itself the merits of
the jurisdictional claims.” Id. (quotation omitted).
Stewart provides Nebraska addresses for both Oursland and for himself.
(Filing No. 1 at CM/ECF p. 2.) However, Stewart also alleges that Oursland may
have moved to Arizona. (Id. at CM/ECF p. 4.) Based on these allegations, I cannot
determine whether Stewart’s citizenship differs from Oursland’s. Furthermore, I am
not persuaded that the $800,000.00 amount in controversy alleged in the Complaint
is legitimate. The only statement Stewart makes concerning the amount in
controversy is based on a statement saying he paid Oursland a $5,000.00 retainer fee.
(Id. at CM/ECF p. 6.) Thus, in accordance with Trimble, I will require Stewart to
show by a preponderance of the evidence that the amount claimed is legitimate, and
that the court has subject matter jurisdiction. See Trimble, 232 F.3d at 959-960. This
matter will not proceed until Stewart does so.
IT IS THEREFORE ORDERED that, on the court’s own motion:
1.
Stewart shall have 30 days to amend his Complaint to set forth a short
and plain statement of the grounds for the court’s jurisdiction and to file sufficient
evidence with the court showing that the amount in controversy is greater than
$75,000.00, the jurisdictional amount.
2.
I reserve the right to conduct a further review of Stewart’s claims
pursuant to 28 U.S.C. § 1915(e)(2) after Stewart addresses the matters set forth in this
Memorandum and Order on Initial Review.
3.
The clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: August 17, 2012: deadline for Stewart
to amend.
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5.
Stewart must keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal of this matter
without further notice.
6.
Stewart’s Summary of Plaintiff Complaint, construed in part as a motion
to appoint counsel, (Filing No. 7) is denied without prejudice to reassertion.
See Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (“Indigent civil litigants do not
have a constitutional or statutory right to appointed counsel. . . . The trial court has
broad discretion to decide whether both the plaintiff and the court will benefit from
the appointment of counsel . . . .”).
Dated July 18, 2012.
BY THE COURT

__________________________________________
Warren K. Urbom
United States Senior District Judge

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