Woolman v. The Lodge et al

Filing 7

MEMORANDUM OPINION that the Court lacks subject matter jurisdiction, and the complaint will be dismissed without prejudice. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy e-mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL B. WOOLMAN,

)
)
Plaintiff,
)
)
v.
)
)
THE LODGE and PERRY REID
)
PROPERTIES,
)
)
Defendants.
)
______________________________)

4:12CV3172

MEMORANDUM OPINION

Plaintiff filed his complaint in this matter on August
13, 2012 (Filing No. 1).

Plaintiff has previously been given

leave to proceed in forma pauperis.

The Court now conducts an

initial review of plaintiff’s claims to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT
Plaintiff filed his complaint against two defendants,

which the Court liberally construes as the owners of plaintiff’s
previous apartment (Filing No. 1 at CM/ECF p. 1).

Plaintiff

alleges that, while living in his former apartment, he contracted
“dysentery” due to defendants’ failure to act on his complaints
relating to the smell of urine and feces in his apartment.
at CM/ECF pp. 2-3.)

Plaintiff alleges that he made approximately

10 complaints, but defendants did nothing.

Plaintiff became sick

and “all [his] furniture & clothes, had to be thrown away.”
at CM/ECF p. 2.)

(Id.

(Id.

Plaintiff claims his former apartment was “the

nastiest apartment ever” because urine and feces was being

“pumped” through it by defendants.

(Id. at CM/ECF pp. 2-3.)

These conditions violated the “Nebraska Renters Act.”
CM/ECF p. 3.)

(Id. at

Plaintiff requests that the Court award him

damages for his personal property loss and his medical bills.
(Id. at CM/ECF pp. 4-5.)
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)(2).

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
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state a claim.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

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
“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 Natl. 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 the citizenship of either defendant and does not allege
any amount in controversy (Filing No. 1).

Plaintiff does allege

that defendants are headquartered in Lincoln, Nebraska.
CM/ECF p. 1.)

(Id. at

Liberally construed, there is nothing before the

Court sufficient to establish diversity of citizenship as a basis
for jurisdiction in this matter.

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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 to as “federal
question” jurisdiction.

Northwest South Dakota Prod. Credit

Ass’n v. Smith, 784 F.2d 323, 325 (8th Cir. 1986).

As set forth

above, plaintiff alleges that defendants failed to take action
when he repeatedly complained about the living conditions in his
privately-run apartment (Filing No. 1).

At best, such

allegations amount to a landlord-tenant dispute under Nebraska
state law only.

Indeed, plaintiff does not set forth any

specific actions taken by defendants that violate any
constitutional right or support a claim under 42 U.S.C. § 1983 or
any other federal statute.
(8th Cir. 1997).

Keeper v. King, 130 F.3d 1309, 1314

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.”
Buckley, 997 F.2d at 495.

West, 487 U.S. at 48;

Thus, the Court lacks subject matter

jurisdiction, and the complaint will be dismissed without

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prejudice.

A separate order will be entered in accordance with

this memorandum opinion.
DATED this 5th day of September, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or
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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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