Kurtz v. France et al
MEMORANDUM AND ORDER: Plaintiff shall 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. 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. Plaintiff must keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal of this matter without further notice. Ordered by Judge John M. Gerrard. (Copy mailed/e-mailed to pro se party) (KMG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH A. KURTZ,
JOSHUA FRANCE, PATRICA
MARYLAND, Personal Theift,
MATTHEW HIMELIC, and DAVID
Plaintiff filed his Complaint in this matter on April 9, 2014. (Filing No. 1.) The
court has given Plaintiff 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).
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, 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) (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 here 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
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 already
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, that his civil rights have been violated, and that this case
involves a matter between citizens of different states in which the amount in
controversy exceeds $75,000. (See Filing No. 1 at CM/ECF p. 4.) However, as
discussed below, the court cannot determine whether jurisdiction is proper based on
the information set forth in the Complaint.
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. 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. See Magee v.
Tr. of Hamline Univ, Minn., 747 F.3d 532, 536 (8th Cir. 2014).
Here, Plaintiff does not set forth any allegation that could be liberally construed
to violate any federal statute. While Plaintiff asserts a claim that Defendants have
violated his civil rights, the Complaint lacks any indication that Defendants are state
actors. Accordingly, Plaintiff’s allegations do not establish that federal-question
jurisdiction exists in this matter.
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).
Here, Plaintiff has not set forth a statement of relief. (See Filing No. 1 at
CM/ECF p. 5.) In addition, Plaintiff has provided a Nebraska address for himself and
what appear to be Nebraska addresses for Defendants. (Id. at CM/ECF p. 1.)
Accordingly, the court cannot determine that the amount in controversy is greater than
$75,000.00, or that Plaintiff’s citizenship differs from Defendants’ citizenship. In light
of the foregoing, on the court’s own motion,
IT IS THEREFORE ORDERED that:
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
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.
3. The Clerk of the court is directed to set a pro se case management deadline
in this matter with the following text: July 25, 2014: deadline for Plaintiff to amend.
Plaintiff must keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal of this matter
without further notice.
DATED this 25th day of June, 2014.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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