Williams v. Retard et al
MEMORANDUM AND ORDER - Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. A separate Judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
Plaintiff filed her Complaint in this matter on January 4, 2012. (Filing No. 1.)
Plaintiff was given leave to proceed in forma pauperis. (Filing No. 6.) 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 her Complaint against one Defendant, Michael Retard. (Filing
No. 1 at CM/ECF p. 1.) In its entirety, the Complaint alleges, “We have a marriage
liscence [sic] out of Louisiana and got married[.] [H]e left me in homeless shelter for
months.” (Id. at CM/ECF p. 2.) Plaintiff does not state what relief she seeks from
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. §
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, 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
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).
DISCUSSION OF CLAIMS
The court must dismiss this action because it lacks subject-matter jurisdiction
over it. 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.”). As discussed below,
Plaintiff failed to establish either diversity of citizenship jurisdiction or federal
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 ex rel. Ryan v. Schneider
Nat’l. 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 resides in Nebraska and Defendant resides in
either New York or Louisiana. (Filing No. 1 at CM/ECF p. 1.) Thus, it appears that
Plaintiff’s citizenship is different from Defendant’s. However, Plaintiff does not
allege any amount in controversy, let alone allege an amount greater than $75,000.00.
For this reason, Plaintiff has failed to establish diversity of citizenship jurisdiction as
a basis for jurisdiction in this matter.
Subject matter jurisdiction is also proper 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). Liberally construed, Plaintiff does not set forth
any specific actions taken by Defendant that violate any constitutional right or support
a claim under 42 U.S.C. § 1983 or any other federal statute. In short, Plaintiff does
not allege that Defendant deprived her 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 the
Complaint is dismissed without prejudice.
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 22 nd day of February, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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