Kurtz v. Miller et al
Filing
6
MEMORANDUM AND ORDER - IT IS ORDERED: 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. The Court reserves the r ight 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. The clerk of the court is directed to set a pro se case management deadli ne in this matter with the following text: August 11, 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. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH A. TIMOTHY KURTZ,
)
)
Plaintiff,
)
)
v.
)
)
TASHA MILLER, JIM FISK,
)
nephew, BRUCE KOEHLER,
)
MATTHEW HIMELIC, son, CARRIE )
HIMELIC, if needed, GEORGE
)
HIMELIC, CHRISTOPHER MARYLAND,)
Friends and Family, and DAVID )
FLOTT,
)
)
Defendants.
)
______________________________)
8:14CV139
MEMORANDUM AND ORDER
Plaintiff filed his complaint in this matter on May 2,
2014 (Filing No. 1).
Plaintiff was 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.
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.
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
-2-
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).
II.
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).
rights have been violated.
Here, plaintiff alleges that his civil
(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.
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.
-3-
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.
-4-
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).
Here, plaintiff has not requested monetary 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 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.
-5-
2.
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:
August 11, 2014:
4.
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 8th day of July, 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.
The U.S. District Court for the District of Nebraska does not endorse,
recommend, approve, or guarantee any third parties or the services or products
they provide on their Web sites. Likewise, the court has no agreements with
any of these third parties or their Web sites. The court accepts no
responsibility for the availability or functionality of any hyperlink. Thus,
the fact that a hyperlink ceases to work or directs the user to some other site
does not affect the opinion of the court.
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?