Fraction v. James et al

Filing 7

MEMORANDUM AND ORDER that Plaintiff will have 30 days to file an amended complaint that sets 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. The Clerk is directed to set a pro se case management deadline in this matter with the following text: March 5, 2015: deadline for Plaintiff to amend. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BERNARD FRACTION,
Plaintiff,
v.
RANDY JAMES, and VANDELAY
INVESTMENTS, et al,
Defendants.

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8:14CV348

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on November 5, 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).
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint against Randy James and Vandelay Investments.
(Filing No. 1 at CM/ECF p. 1.) Plaintiff’s allegations are difficult to decipher. As
best as the court can tell, Plaintiff alleges his name was forged on a return receipt card
and, as a result, Defendants “Stole [his] Home” and “Got Rid of [his] Person[a]l
Property.” (Id. at CM/ECF p. 2.) As relief, Plaintiff asks the court to order
Defendants to return his home to the condition it was in prior to the theft, and to return
or replace his personal property. (Id. at CM/ECF p. 5.)
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

In evaluating Plaintiff’s claims, the court must determine whether subjectmatter 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 alleged a “[v]iolation of civil rights” and that his
“[c]laim arises under the Constitution, laws or treaties of the United States.” (See
Filing No. 1 at CM/ECF p. 4.) However, as discussed below, the court cannot
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determine whether jurisdiction is proper based on the information set forth in the
Complaint.
A.

Diversity of Citizenship Jurisdiction

Subject-matter jurisdiction may be proper in federal court 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). 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 did not provide an address for Defendants and did not allege an
amount in controversy. Therefore, the court is unable to determine whether there is
diversity of citizenship jurisdiction.
B.

Federal Question Jurisdiction

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). 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 v. Atkins, 487 U.S. 42, 48 (1988). Courts have held that a private party’s
actions can be considered state action, or actions under color of state law, if the private
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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).
While Plaintiff asserts a claim that Defendants violated his civil rights, the
Complaint lacks any indication that Defendants are state actors. In addition, while
Plaintiff asserts his claim arises under the Constitution, laws, or treaties of the United
States, there are no facts alleged to support such a claim. Accordingly, Plaintiff’s
allegations do not establish that federal question jurisdiction exists in this matter.
On the court’s own motion, Plaintiff will have 30 days to file an amended
complaint that sets forth the grounds for this court’s jurisdiction.
IT IS THEREFORE ORDERED that:
1.
Plaintiff will have 30 days to file an amended complaint that sets forth
a short and plain statement of the grounds for the court’s jurisdiction. Failure to file
an amended complaint in accordance with this Memorandum and Order will result in
dismissal of this matter without further notice to Plaintiff.
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 is directed to set a pro se case management deadline in this
matter with the following text: March 5, 2015: deadline for Plaintiff to amend.

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DATED this 3rd day of February, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*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
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court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
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