Jones v. Hesser et al
MEMORANDUM AND ORDER on Initial Review. Plaintiff's Complaint 1 is dismissed without prejudice. A separate Judgment will be entered in accordance with this Memorandum and Order.Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TROY L. JONES,
MARY L. HESSER, LAURA
TAGUE, State Farm Claims
Representative, and STATE FARM,
Plaintiff filed his Complaint in this matter on November 27, 2012. (Filing No.
1.) Plaintiff has been given leave to proceed in forma pauperis in this matter. (Filing
No. 3.) 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).
SUMMARY OF COMPLAINT
Plaintiff filed his Complaint on November 27, 2012, against Mary Hesser, Laura
Tague, and State Farm. (Filing No. 1 at CM/ECF p. 1.) Plaintiff alleges that he was
involved in a car accident with Mary Hesser, a Nebraska resident, on August 23, 2012.
(Id. at CM/ECF p. 2.) Following the accident, Plaintiff began working on an insurance
claim with with Laura Tague, a claim representative for State Farm. Plaintiff alleges
that Laura Tague has “admitted to the plaintiff’s injuries, but disputed the extent of his
injuries.” (Id. at CM/ECF p. 3.) Plaintiff seeks $200,000.00 in monetary damages from
Defendants. (Id. at CM/ECF p. 5.)
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).
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, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(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).
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, when “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).
Subject-matter jurisdiction may also exist where a plaintiff asserts a “nonfrivolous 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). Here, it appears Plaintiff intended to invoke federal2
question jurisdiction under 42 U.S.C. § 1983. (Filing No. 1 at CM/ECF p. 4.) In order
to obtain relief under 42 U.S.C. § 1983, a plaintiff must show the deprivation of a right
secured by the Constitution or laws of the United States by a person acting under color
of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Upon careful review of Plaintiff’s Complaint, the court finds that it lacks subjectmatter jurisdiction over this matter. As to diversity of citizenship jurisdiction, the
citizenship of each plaintiff is not different from the citizenship of each defendant. That
is, Plaintiff alleges that both he and Defendant Mary Hesser are citizens of Nebraska.
Thus, diversity of citizenship jurisdiction does not exist in this case.
As to federal-question jurisdiction, 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. Furthermore, Plaintiff does not allege that
Defendants are state actors. 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. For these reasons, the
court lacks subject-matter jurisdiction and this action must be dismissed pursuant to
Federal Rule of Civil Procedure 12(h)(3).
IT IS THEREFORE ORDERED that: Plaintiff’s Complaint (Filing No. 1) is
dismissed without prejudice. A separate Judgment will be entered in accordance with
this Memorandum and Order.
DATED this 23rd day of January, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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