GAY v. UNLEVER TRUMBULL, C.T.
Filing
5
OPINION filed. Signed by Judge Peter G. Sheridan on 5/28/2013. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MAURICE GAY,
Civil Action No.
11-5929
(PGS)
Plaintiff,
OPINION
V.
UNLEVER TRUMBULL,
C. T.,
Defendant.
APPEARANCES:
se
Plaintiffs
Maurice Gay
Trenton State Prison
P.O. Box 861
Trenton, NJ 08625
SHERIDAN,
District Judge
Plaintiff Maurice Gay,
Prison in Trenton,
a prisoner confined at Trenton State
New Jersey,
pauperis pursuant to 42 U.S.C.
seek to bring this action in forma
§ 1983,
alleging violations of his
constitutional rights.’
‘ This matter was previously administratively terminated for
Plaintiff’s failure either to prepay the filing fee or to submit
Plaintiff
an application for leave to proceed in forma pauperis.
has cured these defects by submitting an application for leave to
proceed in forma pauperis.
Based on the affidavit of indigence,
and the absence of three disqualifying dismissals within 28
U.S.C. § 1915(g), the Court will order the Clerk of the Court to
re-open this action, will grant the application for leave to
proceed in forma pauperis, and will order the Clerk of the Court
to file the Complaint.
At this time,
the Court must review the Complaint to
determine whether it should be dismissed as frivolous or
malicious,
granted,
for failure to state a claim upon which relief may be
or because it seeks monetary relief from a defendant who
is immune from such relief,
or for any other reason under
applicable statutes and rules.
I.
BACKGROUND
The following factual allegations are taken from Plaintiff’s
Complaint and are accepted as true for purposes of this review.
2
Plaintiff alleges that Defendant Unlever Trumbull C.T.
distributed “bad soap” which caused him skin problems.
Plaintiff
seeks monetary damages in the total amount of $30,000.00.
ANALYSIS
II.
Federal Rule of Civil Procedure 8(a)
requires the plaintiff
in a federal action to set forth “a short and plain statement of
the grounds upon which the court’s jurisdiction depends.”
Federal courts are bound to determine whether they have
jurisdiction even if none of the parties to an action have
challenged the asserted bases theref or.
National Bank,
994 F. 2d 1039
v. Mellon Bank, N.A.,
941 F.2d 201
(3d Cir.
(3d Cir.),
510 U.S.
1991),
964
Packard v.
Provident
cert. denied sub nom.
(1993); Temple Univ. v. White,
cert. denied sub nom.
Snider v.
The Court construes this as a claim against Unilever, with
an alleged location in Trumbull, Connecticut.
2
2
Temple Univ.,
502 U.S.
Anticiues Assocs.,
“a plaintiff,
pleading,
1032
L.P.,
(1992); TM Marketing,
803 F.
Supp.
affirmatively and distinctly,
1992).
Indeed,
the existence of whatever
and,
if he does not do so,
must dismiss the case, unless the defect be
...
corrected by amendment.”
(1926).
(D.N.J.
suing in a federal court, must show in his
is essential to federal jurisdiction,
the court
994
Inc. v. Art &
Smith v. McCullough,
270 U.S.
456,
459
A court can take no measures to rectify a want of
jurisdiction,
because the lack of jurisdiction itself precludes
asserting judicial power.
See First American Nat’l Bank v.
Straight Creek Processing Co.,
756 F.
Supp.
(where diversity of parties is incomplete,
945
(E.D. Va.
1991)
court has no
jurisdiction to consider plaintiff’s motion to dismiss nondiverse defendants;
jurisdiction).
rather,
court must dismiss action for lack of
As explained more fully below,
this Complaint
does not meet the requirements either for federal-question
jurisdiction under 28 U.S.C.
under 28 U.S.C.
A.
28 U.S.C.
§ 1331 or for diversity jurisdiction
§ 1332.
§ 1331
Pursuant to 28 U.S.C.
§ 1331,
Congress has established
jurisdiction in the federal district courts over “all civil
actions arising under the Constitution,
United States.”
under 42 U.S.C.
laws,
or treaties of the
Although Plaintiff asserts that his claim arises
§ 1983,
thus invoking § 1331 federal-question
3
jurisdiction,
the facts pleaded reveal no claim arising under
§ 1983.
More specifically,
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory
subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress
...
Thus,
to state a claim for relief under § 1983,
allege,
first,
a plaintiff must
the violation of a right secured by the
Constitution or laws of the United States and,
second,
that the
alleged deprivation was committed or caused by a person acting
under color of state law.
West v. Atkins,
(1988);
Piecknick v.
1994).
The basis of Plaintiff’s action,
Pennsylvania,
defendant distributed “bad soap.”
487 U.S.
36 F.3d 1250,
42,
1255-56
however,
48
(3d Cir.
is that the
This does not state a claim
for a violation of a right secured by the Constitution or law of
the United States.
In addition,
“the under-color-of-state-law element of § 1983
excludes from its reach ‘merely private conduct,
discriminatory or wrongful.’”
Sullivan,
526 U.S.
Nevertheless,
40,
50
no matter how
American Mfrs. Mut.
(1999)
Ins. Co. v.
(citations omitted)
“the deed of an ostensibly private organization or
individual” at times may demand to be treated “as if a State has
4
Brentwood Academy v. Tennessee
caused it to be performed.”
Specifically,
(2001)
288
531 U.S.
Secondary Sch. Athletic Ass’n,
though only if,
“state action may be found if,
there is such a ‘close nexus between the State and the challenged
action’
that seemingly private behavior ‘may be fairly treated as
(quoting Jackson v. Metropolitan
that of the State itself.’”
419 U.S.
Edison Co.,
345,
351
(1974)).
The “under color of state law” requirement of 42 U.
.
C.
§ 1983 has been treated identically to the “state action”
Mark v. Borough of
requirement of the Fourteenth Amendment.
51 F.3d 1137,
Hatboro,
858
(1995)
(1966);
1141
(3d Cir.
(citing United States v.
Luciar v.
Edrnondson Oil Co.,
Rendell-Baker v. Kohn,
457 U.S.
cert.
1995),
Price,
383 U.S.
457 U.S.
830,
838
denied 516 U.S.
922,
(1982)).
787,
928
794 n.7
(1982);
State action
exists under § 1983 only when it can be said that the government
is responsible for the specific conduct of which a plaintiff
Mark,
complains.
51 F.3d at 1141-42.
“Put differently,
deciding
whether there has been state action requires an inquiry into
whether ‘there is a sufficiently close nexus between the State
and the challenged action of
[the defendants]
so that the action
of the latter may fairly be treated as that of the State
itself.’”
1004
Id.
at 1142
(quoting Blum v. Yaretsky,
(1982) )
5
457 U.S.
991,
A private entity can be sued under § 1983 where
it “has
(1)
exercised powers that are traditionally the exclusive prerogative
51 F.3d at 1142
of the State,” Mark,
the
(2)
(citation omitted);
State and the private party have acted in concert or jointly to
deprive a plaintiff of his rights,
398 U.S.
144,
170-171
(1970);
(3)
Adickes v.
S.H. Kress & Co.,
the State has permitted a
private party to substitute his judgment for that of the State,
81-82
727 F.2d 79,
Cruz v. Donnelly,
(3d Cir.
1984);
or
(4)
the
private party and the State have a symbiotic relationship as
joint participants in the unconstitutional activity,
Leesville Concrete Co.,
614,
500 U.S.
Inc.,
620
Edinonson v.
(1991); Mark,
of
See also DeShaney v. Winnebago County Dept.
F.3d at 1143.
489 U.S.
Social Services,
(1989)
189
51
(Fourteenth Amendment’s
“purpose was to protect the people from the State,
not to ensure
that the State protected them from each other”); Van Ort v.
Estate of Stanewich,
(“Individuals
.
.
.
92 F.3d 831,
835
(9th Cir.
have no right to be free from infliction of
[constitutional] harm by private actors”),
U.S.
(E.D.
1111
Pa.
(1997); Jones v. Arbor,
1993)
1996)
Inc.,
,
519
205,
208
cert. denied
820 F.
Supp.
(plaintiff did not allege that defendant
corporation was a state actor or had such a symbiotic
relationship with the state so as effectively to be an
instrumentality of the state)
.
Here,
Plaintiff alleges no facts
that would permit this Court to find that Defendant Unlever,
6
C.T.,
Trumbull,
acted under color of state law within the meaning
of § 1983 when it distributed soap.
the facts as alleged do not support this Court in
Thus,
exercising jurisdiction over this action under § 1331.
13.
28 U.S.C.
§ 1332
Although Plaintiff does not allege jurisdiction based upon
diversity of citizenship under 28 U.S.C.
§ 1332;
this Court will
consider whether it can exercise jurisdiction under that
provision.
Section 1332 can provide jurisdiction over state-law civil
actions if,
in the provision pertinent here,
the matter in
controversy exceeds the sum or value of $75,000,
interest and costs,
States.”
i.e.,
to found jurisdiction
there must be complete diversity among all parties,
each plaintiff must be a citizen of a different state from
each defendant.
U.S.
and is between “citizens of different
It has long been recognized that,
upon § 1332,
exclusive of
365
Owen Ecuipment and Erection Co. v. Krocier,
437
(1978)
A plaintiff,
as the party asserting federal jurisdiction,
“must specifically allegeeach party’s citizenship
1
and these
allegations must show that the plaintiff and defendant are
citizens of different states.”
American Employers’
Ins.
Co.,
American Motorists Ins.
600 F.2d 15,
see also Universal Reinsurance Co.,
7
Ltd. v.
16
(5th Cir.
St.
Co. v.
1979);
Paul Fire &
Marine Ins.
to allege
Co.,
224 F.3d 139,
[the party’s]
141
(2d Cir.
2000)
(“The failure
Citizenship in a particular state is
fatal to diversity jurisdiction”).
Here,
however,
Plaintiff
alleges no facts that would permit this Court to determine either
his citizenship or the Citizenship of the defendant.
A corporation is “deemed to be a citizen of any State by
which it has been incorporated and of the State where it has its
Plaintiff has listed a Connecticut location for the Defendant,
he
has failed to allege either that the Defendant is incorporated in
Connecticut,
and not in New Jersey,
or that it has its principal
place of business in Connecticut.
Specifically with respect to individuals,
in addition,
For purposes of determining diversity, state
citizenship is equated with domicile.
Domicile,
however, is not necessarily synonymous with residence;
one can reside in one place and be domiciled in
another.
Residence and an intent to make the place of
residence one’s home are required for citizenship and
to establish a new domicile.
Although the analysis is
essarily case specific, courts have looked to
nec
certain factors, including state of employment, voting,
taxes, driver’s license, bank accounts and assets, and
civic and religious associations in determining the
citizenship of an individual
McCracken v. Murphy,
328 F.Supp.2d 530,
(citations omitted), ff’d,
“For iates,
532
129 Fed.Appx.
(E.D.
701
Pa.
(3d Cir.
2004)
2005).
citizenship for diversity purposes is the state in
which the iate was domiciled prior to incarceration,
unless the
iate plans to live elsewhere when he is released in which event
8
citizenship would be that state.”
532
(citing Flanagan v.
aff’d,
980 F.2d 722
783 F.Supp.
Shively,
(3d Cir.
McCracken,
1992))
.
facts regarding his own citizenship.
in New Jersey is not sufficient,
328 F.Supp.2d at
922,
935
(E.D.
Pa.),
Plaintiff has alleged no
The fact of incarceration
of itself,
to establish
citizenship in New Jersey.
Finally,
Plaintiff alleges damages in the amount of $30,000,
substantially below the jurisdictional threshold of $75,000.
all the foregoing reasons,
For
diversity jurisdiction is lacking.
The Court is mindful that Plaintiff appears here p
and
therefore the complaint is to be held to less stringent standards
than formal pleadings drafted by lawyers.
U.S.
519
(1972).
Nonetheless,
Haines v. Kerner,
404
the Court can discern no basis for
asserting jurisdiction over this action.
V.
CONCLUSION
For the reasons set forth above,
the Complaint will be
dismissed without prejudice for lack of jurisdiction.
3
It does
The Court notes that “‘[g]enerally, an order which
dismisses a complaint without prejudice is neither final nor
appealable because the deficiency may be corrected by the
plaintiff without affecting the cause of action.’
The
dispositive inquiry is whether the district court’s order finally
resolved the case.”
Martin v. Brown, 63 F.3d 1252, 1257-58 (3d
Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951
(3d Cir. 1976)) (other citations omitted)
In this case, if
Plaintiff can correct the deficiencies of his Complaint, he may
file a motion to re-open these claims in accordance with the
court rules.
.
9
not appear that Plaintiff could amend the Complaint to establish
jurisdiction.
An appropriate Order follows.
Peter G. Sheridan
United States District Judge
Dated:
10
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