Rucker v. Smith et al

Filing 6

MEMORANDUM AND ORDER that Rucker's Complaint (Filing No. 1 ) is dismissed without prejudice. The court will enter judgment by a separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAWN RUCKER, Parent on behalf of
Demetrius Rucker, Incapacitated
Individual;

8:17CV364

Plaintiff,
MEMORANDUM
AND ORDER

vs.
JAMIESHA SMITH, DRUG
DEALERS, JASON TIERNEY, General
Laborer; and NORIEGA ET AL,
Terrorist;
Defendants.

Plaintiff Dawn Rucker (“Rucker”) filed her Complaint (Filing No. 1) on
September 29, 2017, and 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
Rucker bring this action as “[p]arent on behalf of Demetrius Rucker –
Incapacitated Individual.” (Filing No. 1 at CM/ECF p.1.) Rucker is the mother of
22-year-old Demetrius Rucker (“Demetrius”), who Rucker alleges is mentally
incapacitated due to illegal drug use. (Id. at CM/ECF pp.4, 9–10.) Rucker alleges
that Defendants Jamiesha Smith, Jason Tierney, and “others” are selling drugs out
of Demetrius’ apartment and intentionally associating Demetrius in their illegal
activities. (Id. at CM/ECF p.4.) As relief, Rucker requests that Demetrius be
placed in inpatient rehabilitation in a mental institution and receive certain
therapies from a specified provider. (Id.)

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
There are several problematic issues with Rucker’s Complaint, especially
because she is attempting to proceed in a representative capacity. As discussed
below, Rucker has failed to allege that the court has jurisdiction over this matter or
that she has standing to bring any claims on behalf of her son.
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A. Jurisdiction
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). The subject-matter jurisdiction of the
federal district courts is generally set forth in 28 U.S.C. §§ 1331 and 1332. Under
these statutes, federal jurisdiction is available only when a “federal question” is
presented (i.e., in a civil action arising under the Constitution, laws, or treaties of
the United States) or when the parties are of diverse citizenship and the amount in
controversy exceeds $75,000.
Here, Rucker cites the following provisions as bases for federal question
jurisdiction: (1) “Nebraska Criminal Rules 3.1(C)(1),(2) & 5.1(2)(A), (B), (C) –
Emergency & 9.1;” (2) 42 U.S.C. § 2254; (3) 28 U.S.C. § 2241; and (4) “Freedom
to use laced Marijuana (k-2 with crank unknowingly).” The court was unable to
determine in its research what Rucker is referring to by the “Nebraska Criminal
Rules.” Regardless, Nebraska state criminal rules would not serve as a basis of
federal question jurisdiction.
The court believes Rucker’s reference to 42 U.S.C. § 2254, a repealed
statute, was intended to mean 28 U.S.C. § 2254 since both it and 28 U.S.C. § 2241
address federal habeas relief. Construed as such, the Complaint fails to allege any
basis for habeas relief. Federal district courts have jurisdiction to grant habeas
relief under 28 U.S.C. §§ 2241(c)(3) or 2254(a) only on the ground that the
petitioner is in custody in violation of the Constitution or laws or treaties of the
United States. Rucker does not allege that Demetrius is in custody, let alone that
he is in custody in violation of the Constitution or federal law. Moreover, to the
extent Rucker seeks habeas relief for Demetrius as his “next friend,” she has failed
to allege sufficient facts to establish “next friend” standing. See Whitmore v.
Arkansas, 495 U.S. 149, 163–64 (1990) (“‘[N]ext friend’ standing is by no means
granted automatically to whomever seeks to pursue an action on behalf of another.

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. . . The burden is on the ‘next friend’ clearly to establish the propriety of his status
and thereby justify the jurisdiction of the court.”).
Finally, liberally construed, Rucker appears to allege that Defendants have
violated Demetrius’ constitutional rights by providing him with “laced Marijuana”
without his knowledge. To state a § 1983 cause of action, 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 a
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). Rucker fails to allege that
any of the Defendants are state actors or that their conduct is attributable to the
state. See Filarsky v. Delia, 566 U.S. 377, 383 (2012) (“Anyone whose conduct is
‘fairly attributable to the state’ can be sued as a state actor under § 1983.”).
Rather, it is clear from the Complaint that Defendants are not acting under the
color of state law given that all the allegations concerning Defendants relate to
criminal activity.
As the foregoing makes clear, there is no discernible “federal question”
alleged in the Complaint. Nor has Rucker alleged a basis for “diversity of
citizenship” jurisdiction as the Defendants and Demetrius are all alleged to reside
in Nebraska and the amount in controversy does not exceed $75,000. See 28
U.S.C. § 1332. Accordingly, the court lacks jurisdiction over Rucker’s Complaint
and it must be dismissed. 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.”).
B. Standing
In addition to the Complaint’s jurisdictional deficiencies, Rucker fails to
establish that she has standing to bring this action on behalf of Demetrius. Rucker
does not allege she was deprived of any rights, privileges or immunities, or was
injured in any way. Rather, she seeks only relief for alleged wrongs done to
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Demetrius. To the extent Rucker attempts to allege a violation of Demetrius’
rights, “parents lack standing to bring individual claims under § 1983 based solely
upon deprivation of a child’s constitutional rights.” Phillips ex rel. Green v. City
of New York, 453 F. Supp. 2d 690, 734 (S.D.N.Y. 2006). Rucker might be able to
sue in a representative capacity if she is Demetrius’ legal guardian. See Fed. R.
Civ. P. 17(a)(1)(C) (“The following may sue in their own names without joining
the person from whose benefit the action is brought: . . . a guardian . . . .”) and
(c)(1)(A) (“The following representatives may sue or defend on behalf of a minor
or incompetent person: . . . a general guardian . . . .”). Alternatively, she might be
able to sue as Demetrius’ “next friend.” See Fed. R. Civ. P. 17(c)(2). In either
case, Rucker would have to allege facts to show her authority to bring suit on
behalf of Demetrius. Additionally, as a pro se litigant, Rucker may not represent
parties other than herself and would need to seek counsel if she seeks to pursue
claims on behalf of Demetrius. See Osei-Afriyie v. Med. Coll. of Pennsylvania,
937 F.2d 876, 882–83 (3d Cir. 1991); Iannaccone v. Law, 142 F.3d 553, 558 (2d
Cir. 1998); 28 U.S.C. § 1654.
IV. CONCLUSION
The allegations of the Complaint fail to establish that the court has
jurisdiction of this matter under 28 U.S.C. §§ 1331 or 1332, and the court will
dismiss this action without prejudice. The court will not provide Rucker with an
opportunity to file an amended complaint because the court has concluded that to
do so would be futile.
IT IS THEREFORE ORDERED that:
1.

Rucker’s Complaint (Filing No. 1) is dismissed without prejudice.

2.

The court will enter judgment by a separate document.

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Dated this 12th day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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