Gage v. Crete Carrier

Filing 8

MEMORANDUM AND ORDER - Plaintiff will have 30 days from the date of this memorandum and order to amend his complaint to set forth a short and plain statement of the grounds for the Court's jurisdiction. Plaintiff will have 30 days from the date of this memorandum and order to file sufficient evidence showing that the amount in controversy is greater than $75,000.00, the jurisdictional limit. The Court reserves the right to conduct further review of plaintiff's claims pursuant to 28 U.S.C. § 1915(e)(2) after plaintiff addresses the matters set forth in thismemorandum and order. The clerk of the court is directed to set a pro se case management deadline in this matter with the following text: July 7, 2014: deadline for plaintiff to amend. Ordered by Senior Judge Lyle E. Strom. (Copy e-mailed to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONALD EDWARD GAGE,

)
)
Plaintiff,
)
)
v.
)
)
CRETE CARRIER,
)
)
Defendant.
)
______________________________)

4:13CV3220

MEMORANDUM AND ORDER

Plaintiff filed his complaint in this matter on
December 23, 2013 (Filing No. 1.)

Plaintiff received leave to

proceed in forma pauperis (Filing No. 7).

The Court now conducts

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

SUMMARY OF COMPLAINT
Plaintiff Donald Gage filed his complaint against one

defendant, Crete Carrier (“Crete”).

On February 5, 2005,

plaintiff was operating a tractor trailer for Crete.
CM/ECF p. 2.)

(Id. at

While attempting to turn his tractor trailer

around, plaintiff found himself stuck due to some frozen, damp
dirt beneath his rear tires.

(Id.)

Plaintiff claims that while

exiting his tractor trailer, he witnessed an approaching vehicle
crash into his trailer.

(Id.)

As a result of experiencing this

accident, plaintiff alleges that he suffers from Post Traumatic

Stress Disorder (“PTSD”).

Plaintiff further claims that his PTSD

is adversely affecting his employment abilities, he has been
denied worker’s compensation from Crete, and Crete’s insurance
personnel are not cooperating with his complaints.

(Id.)

Plaintiff has not exhausted any administrative procedures through
state and federal government agencies.

(Id. at CM/ECF p. 5.)

Plaintiff is seeking compensation from Crete in the amount of
$350,000,000.00 for employment discrimination, and violation of
civil rights.
II.

(Id. at CM/ECF p. 4.)

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 failure to state a claim upon which relief can be granted.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“A claim
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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.
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) (citation
omitted).

Pro se litigants must comply with the Federal Rules of

Civil Procedure.

See Burgs v. Sissel, 745 F.2d 526, 528 (8th

Cir. 1984) (“[P]ro se litigants are not excused from failing to
comply with substantive and procedural law.”).
Liberally construed, plaintiff 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
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
In evaluating plaintiff’s claims, the Court must
determine whether subject-matter jurisdiction is proper.

See

Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss
the action.”)

Furthermore, the plaintiff must sufficiently state

a claim for relief that contains, “a short and plain statement of
the grounds for the court’s jurisdiction, unless the court has
jurisdiction and the claim needs no new jurisdictional support.”
Fed. R. Civ. P. 8(a)(1).

Here, plaintiff alleges that his claim

arises under the Constitution, laws or treaties of the United
States.

However, as discussed below, the Court 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).

The mere suggestion of

a federal question is not sufficient to establish the
jurisdiction of federal courts:

rather, the federal court’s

jurisdiction must affirmatively appear clearly and distinctly.
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Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990).

Under 42

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, 487 U.S. at 48.

Courts

have held that a private party’s actions can be considered state
action, or actions under color of state law, if the private party
is a willful participant in joint activity with the State to deny
constitutional rights.

Magee v. Tr. of Hamline Univ, Minn., 747

F.3d 532, 536 (8th Cir. 2014); Dossett v. First State Bank, 399
F.3d 940, 947 (2005); Adickes v. S.H. Kress & Co., 398 U.S. 144,
152 (1970).
Here, plaintiff does not set forth any allegation that
could be liberally construed to violate any federal statute.
Plaintiff has sought to exert a claim based on employment
discrimination.

To the extent that all circuits have held that a

plaintiff alleging employment discrimination is not limited to
recovery under Title VII, but may also recover under Section 1983
if he proves the alleged discrimination violated his equal
protection rights under the Fourteenth Amendment, plaintiff has
failed to assert the basis of discrimination.

Henley v. Brown,

686 F.3d 634, 642-43 (8th Cir. 2012); see also Hervey v. City of
Little Rock, 787 F.2d 1223, 1233 (8th Cir. 1986).
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Except for the

implication that plaintiff is male, he has not alleged his
membership in a protected class, such as race, national origin,
gender, age, and/or disability.

Furthermore, plaintiff asserts a

claim that Crete violated his civil rights.

However, the

complaint lacks any indication that Crete was acting under color
of state law.

Plaintiff’s main argument is that he was unable to

receive worker’s compensation from Crete, and that Crete’s
insurance personnel are not cooperative (Filing No. 1 at CM/ECF
p. 2).

Accordingly, plaintiff’s allegations do not establish

that 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).

While a complaint “alleges a sufficient amount in
controversy to establish diversity jurisdiction, but . . . the
court questions whether the amount alleged is legitimate, the
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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 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).

Though plaintiff has not indicated an intention to
assert diversity of citizenship jurisdiction, he has provided an
Arizona address for himself and a Nebraska address for Crete.
(Id. at CM/ECF p. 1.)

Accordingly, the Court can determine that

plaintiff’s citizenship differs from Crete’s.

However, the Court

has serious doubts that the claim for money damages made by
plaintiff in excess of $350,000,000.00 is legitimate.

Plaintiff

fails to state any facts or legal theories alleging why Crete
should be liable to him for this amount.

Thus, in accordance

with Trimble, the Court will require plaintiff 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 959-60.
until plaintiff does so.

This matter will not proceed

Accordingly,
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IT IS ORDERED:
1.

Plaintiff will have 30 days from the date of this

memorandum and order to amend his complaint to set forth a short
and plain statement of the grounds for the Court’s jurisdiction.
2.

Plaintiff will have 30 days from the date of this

memorandum and order to file sufficient evidence showing that the
amount in controversy is greater than $75,000.00, the
jurisdictional limit.
3.

The Court reserves the right to conduct further

review of plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2)
after plaintiff addresses the matters set forth in this
memorandum and order.
4.

The clerk of the court is directed to set a pro

se case management deadline in this matter with the following
text:

July 7, 2014:
5.

deadline for plaintiff to amend.

Plaintiff must keep the Court informed of his

current address at all times while this case is pending.

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Failure

to do so may result in dismissal of this matter without further
notice.
DATED this 5th day of June, 2014.
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 Web sites.
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