Campbell v. Hepburn

Filing 6

MEMORANDUM AND ORDER - Plaintiff shall have until October 29, 2018, to amend his Complaint to clearly set forth a basis for this court's jurisdiction. Failure to file an amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: October 29, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD L. CAMPBELL,
Plaintiff,

4:18CV3065

vs.
SHELLY HEPBURN, individually
Director of Our Homes Assisted Living;

MEMORANDUM
AND ORDER

Defendant.
Plaintiff Richard L. Campbell filed his Complaint on May 3, 2018. (Filing
No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 5.) 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 has filed this action pursuant to 42 U.S.C. § 1983 against Defendant
Shelly Hepburn (“Defendant”), the Director of Our Homes Assisted Living,
alleging Defendant deprived him of his rights to due process and equal protection
under the Fifth and Fourteenth Amendments. Plaintiff alleges that on April 13,
2018, Plaintiff went to Our Homes Assisted Living to visit his brother and was
denied access by Defendant. Defendant informed Plaintiff that he was banned and
barred from the facility, no longer allowed to visit his brother, and that he would be
arrested if he returned to the facility. Defendant did not provide Plaintiff with any
reason for banning and barring him. As relief, Plaintiff seeks $250,000 in
compensatory damages and $250,000 in punitive damages.

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 of it 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.” 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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or
grounds for a claim, and a general indication of the type of litigation involved.’”
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)
(quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a]
pro se complaint must be liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal
quotation marks and citations omitted).
III. DISCUSSION OF CLAIMS
Plaintiff has filed this action pursuant to 42 U.S.C. § 1983. To state a § 1983
cause of action, 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
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Cir. 1993). Because Plaintiff does not allege that Defendant is a person acting
under color of state law, he fails to state a § 1983 claim and, consequently, fails to
set forth grounds for the court’s jurisdiction.
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). The subject-matter jurisdiction of the
federal district courts is generally set forth in 28 U.S.C. §§ 1331 and 1332. Under
these statutes, federal jurisdiction is available only when a “federal question” is
presented (i.e., in a civil action arising under the Constitution, laws, or treaties of
the United States) or when the parties are of diverse citizenship and the amount in
controversy exceeds $75,000.
Here, Plaintiff alleges jurisdiction under 42 U.S.C. § 1983 “for violation of
his civil rights . . . under color of federal law,” (filing no. 1 at CM/ECF p. 2, ¶ 3),
but fails to allege that Defendant is a state actor or that her conduct is attributable
to the state. See West, 487 U.S. at 49 (“The traditional definition of acting under
color of state law requires that the defendant in a § 1983 action have exercised
power ‘possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.’”); see also Filarsky v. Delia,
566 U.S. 377, 383 (2012) (“Anyone whose conduct is ‘fairly attributable to the
state’ can be sued as a state actor under § 1983.”). Consequently, there is no
discernible “federal question” alleged in the Complaint as Plaintiff has failed to
state a claim under 42 U.S.C. § 1983.
Moreover, Plaintiff has not alleged that Defendant is a citizen of a different
state as required by 28 U.S.C. § 1332. Thus, the allegations of the Complaint also
fail to establish diversity of citizenship jurisdiction.
On the court’s own motion, Plaintiff will have 30 days in which to file an
amended complaint that clearly sets forth a basis for this court’s jurisdiction.

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IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until October 29, 2018, to amend his Complaint to
clearly set forth a basis for this court’s jurisdiction. Failure to file an amended
complaint within the time specified by the court will result in the court dismissing
this case without further notice to Plaintiff.
2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: October 29, 2018: check for amended
complaint.
Dated this 27th day of September, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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