Fraction v. Haney et al

Filing 6

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: This matter is dismissed without prejudice for lack of subject matter jurisdiction. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BERNARD FRACTION,
Plaintiff,

8:17CV291

vs.
MAUREEN HANEY, and LEGAL AID
OF NE,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on August 10, 2017. (Filing No. 1.) He has been
granted 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 brings this action against Maureen Haney1 and Legal Aid of
Nebraska. Plaintiff alleges that Randy James and Vandelay Investments committed
fraud when they obtained a tax deed for Plaintiff’s home and later caused him to be
evicted from his home, because they did not comply with certain prerequisites
required by Nebraska law for issuance of a tax deed. He believes that his personal
and civil rights were violated. (Filing No. 1.) With regard to Legal Aid of
Nebraska, Plaintiff asserts that it “never entered with the court as [his] attorney”;
1

“Maureen Haney,” or Muirne Heaney, is an attorney for Legal Aid of
Nebraska. See Fraction v. James and Vandelay Investments, Case No. 8:14CV348,
Filing No. 10 at CM/ECF p. 17 (D. Neb. April 17, 2015); Stutzka v. McCarville,
420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial
opinions and public records). Plaintiff asserts no separate allegations against
“Maureen Haney.”

failed to charge Randy James and Vandelay Investments with fraud “as discussed
upon [his] signed retainer agreement”; would not appear at his hearing on April 24,
2014; and tried to get him to drop his case and settle for $8000. (Id. at CM/ECF pp.
1-2.) He seeks unspecified damages and a hearing. (Id.)
II. APPLICABLE STANDARDS OF 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).

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III. DISCUSSION
A. Diversity Jurisdiction
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 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). Even assuming that the amount in controversy is
$90,600, the alleged 2013 assessed value of Plaintiff’s home2, Plaintiff has not
established diversity of citizenship. The court previously made Plaintiff aware of
this requirement in a suit Plaintiff brought against Randy James and Vandelay
Investments. See Fraction v. James and Vandelay Investments, Case No.
8:14CV348, Filing No. 7 (D. Neb. April 17, 2015).
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). Liberally construed, Plaintiff fails to
allege a violation of his civil rights under 42 U.S.C. § 1983. Moreover, to obtain
relief under 42 U.S.C. § 1983, a plaintiff must show (1) the deprivation of a right
secured by the Constitution or laws of the United States, and (2) that a person
acting under color of state law caused the deprivation. West v. Atkins, 487 U.S. 42,
48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). If the actions of
the defendant were “not state action, our inquiry ends.” Rendell-Baker v. Kohn,
457 U.S. 830, 838 (1982). Courts have held that a private party’s actions can be
2

See Filing No. 1 at CM/ECF p. 6.
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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). Plaintiff
does not allege nor do his allegations suggest that any of Defendants’ actions were
taken under color of state law. His allegations sound, instead, in a state law claim
of legal malpractice.
IT IS THEREFORE ORDERED that:
1.
This matter is dismissed without prejudice for lack of subject matter
jurisdiction.
2.

A separate judgment will be entered.

Dated this 23rd day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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