GAY v. VISTA

Filing 11

OPINION filed. Signed by Judge Peter G. Sheridan on 10/1/2012. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MAURICE GAY, and
BERNARD JENKINS,
Plaintiffs,
v.
VISTA,
Defendant.

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Civil Action No. 11-6755 (PGS)
OPINION

APPEARANCES:
Plaintiffs pro se
Maurice Gay
Bernard Jenkins
Trenton State Prison
P.O. Box 861
Trenton, NJ 08625
SHERIDAN, District Judge
Plaintiffs Maurice Gay and Bernard Jenkins, prisoners
confined at Trenton State Prison and New Jersey State Prison,
respectively, in Trenton, New Jersey, seek to bring this action
in forma pauperis pursuant to 42 U.S.C. § 1983.1
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This Court will grant Plaintiff Maurice Gay leave to
proceed in forma pauperis.
The Application for leave to proceed in forma pauperis
submitted by co-Plaintiff Bernard Jenkins is incomplete. CoPlaintiff Jenkins used a form supplied by this Court, but his
submission is incomplete and unsigned. In addition, co-Plaintiff
Jenkins failed to supply the required certified institutional
account statement. See 28 U.S.C. § 1915(a). As this Court has
previously afforded co-Plaintiff Jenkins an opportunity to cure
this deficiency, co-Plaintiff Jenkins’s claims will now be

At this time, the Court must review the Complaint to
determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
granted, 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 the
Complaint and are accepted as true for purposes of this review.
Plaintiff Maurice Gay alleges that on October 31, 2011, he
ate some cookies manufactured by Defendant VISTA, after which he
became ill, suffering a headache and gastrointestinal symptoms.
Plaintiff Gay seeks damages in the amount of $45,000.00.
II.

ANALYSIS

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 therefor.

Packard v. Provident

National Bank, 994 F.2d 1039 (3d Cir.), cert. denied sub nom. Upp

dismissed without prejudice for failure to satisfy the filing fee
requirement. See Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009)
(where two or more prisoner plaintiffs seek to proceed in forma
pauperis, each must submit a complete application demonstrating
his entitlement to proceed in forma pauperis).
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v. Mellon Bank, N.A., 510 U.S. 964 (1993); Temple Univ. v. White,
941 F.2d 201 (3d Cir. 1991), cert. denied sub nom. Snider v.
Temple Univ., 502 U.S. 1032 (1992); TM Marketing, Inc. v. Art &
Antiques Assocs., L.P., 803 F. Supp. 994 (D.N.J. 1992).

Indeed,

“a plaintiff, suing in a federal court, must show in his
pleading, affirmatively and distinctly, the existence of whatever
is essential to federal jurisdiction, and, if he does not do so,
the court ...

must dismiss the case, unless the defect be

corrected by amendment.”
(1926).

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. 945 (E.D. Va. 1991)
(where diversity of parties is incomplete, court has no
jurisdiction to consider plaintiff’s motion to dismiss nondiverse defendants; rather, court must dismiss action for lack of
jurisdiction).

As explained more fully below, this Complaint

does not meet the requirements either for federal-question
jurisdiction under 28 U.S.C. § 1331 or for diversity jurisdiction
under 28 U.S.C. § 1332.
A.

28 U.S.C. § 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, laws, or treaties of the

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United States.”

Although Plaintiff Gay asserts that his claims

arise under 42 U.S.C. § 1983, thus invoking § 1331 federalquestion 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, a plaintiff must
allege, first, 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, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).

The basis of Plaintiff Gay’s action, however, is that the

defendant manufactured “bad” cookies which made him ill.

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, no matter how
discriminatory or wrongful.’"

American Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50 (1999) (citations omitted).

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Nevertheless, "the deed of an ostensibly private organization or
individual" at times may demand to be treated "as if a State has
caused it to be performed."

Brentwood Academy v. Tennessee

Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001).
Specifically, "state action may be found if, though only if,
there is such a ‘close nexus between the State and the challenged
action’ that seemingly private behavior ‘may be fairly treated as
that of the State itself.’" Id. (quoting Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 351 (1974)).
The "under color of state law" requirement of 42 U.S.C.
§ 1983 has been treated identically to the "state action"
requirement of the Fourteenth Amendment.

See Mark v. Borough of

Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995), cert. denied 516 U.S.
858 (1995) (citing United States v. Price, 383 U.S. 787, 794 n.7
(1966); Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982);
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (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
complains.

Mark, 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

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itself.’"

Id. at 1142 (quoting Blum v. Yaretsky, 457 U.S. 991,

1004 (1982)).
A private entity can be sued under § 1983 where (1) it "has
exercised powers that are traditionally the exclusive prerogative
of the State, Mark, 51 F.3d at 1142; (2) the State and the
private party act in concert or jointly to deprive a plaintiff of
his rights, Adickes v. S.H. Kress & Co., 398 U.S. 144, 170-171
(1970); (3) the State has permitted a private party to substitute
his judgment for that of the State, Cruz v. Donnelly, 727 F.2d
79, 81-82 (3d Cir. 1984); or (4) the private party and the State
have a symbiotic relationship as joint participants in the
unconstitutional activity, Edmonson v. Leesville Concrete Co.,
Inc., 500 U.S. 614, 620 (1991); Mark, 51 F.3d at 1143.

See also

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S.
189 (1989) (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, 92 F.3d
831, 835 (9th Cir. 1996) ("Individuals . . . have no right to be
free from infliction of [constitutional] harm by private
actors"), cert. denied , 519 U.S. 1111 (1997); Jones v. Arbor,
Inc., 820 F. Supp. 205, 208 (E.D. Pa. 1993) (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

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that would permit this Court to find that Defendant VISTA acted
under color of state law within the meaning of § 1983 when it
manufactured cookies.
Thus, the facts as alleged do not support this Court in
exercising jurisdiction over this action under § 1331.
B.

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, exclusive of
interest and costs, and is between “citizens of different
States.”

It has long been recognized that, to found jurisdiction

upon § 1332, there must be complete diversity among all parties,
i.e., each plaintiff must be a citizen of a different state from
each defendant.

Owen Equipment and Erection Co. v. Kroger, 437

U.S. 365 (1978).
A plaintiff, as the party asserting federal jurisdiction,
“must specifically allege each party’s citizenship, and these
allegations must show that the plaintiff and defendant are
citizens of different states.”

American Motorists Ins. Co. v.

American Employers’ Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979);

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see also Universal Reinsurance Co., Ltd. v. St. Paul Fire &
Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000) (“The failure
to allege [the party’s] citizenship in a particular state is
fatal to diversity jurisdiction”).

Here, however, Plaintiff Gay

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
principal place of business.”

28 U.S.C. § 1332(c).

Although

Plaintiff has listed an Iowa address for Defendant VISTA, he has
failed to allege either that VISTA is incorporated in Iowa, and
not in New Jersey, or that it has its principal place of business
in Iowa.
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
necessarily case specific, courts have looked to
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, 532 (E.D. Pa. 2004)
(citations omitted), aff’d, 129 Fed.Appx. 701 (3d Cir. 2005).
“For inmates, citizenship for diversity purposes is the state in
which the inmate was domiciled prior to incarceration, unless the
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inmate plans to live elsewhere when he is released in which event
citizenship would be that state.”

McCracken, 328 F.Supp.2d at

532 (citing Flanagan v. Shively, 783 F.Supp. 922, 935 (E.D. Pa.),
aff’d, 980 F.2d 722 (3d Cir. 1992)).

Plaintiff has alleged no

facts regarding his own citizenship.

The fact of incarceration

in New Jersey is not sufficient, of itself, to establish
citizenship in New Jersey.

For all the foregoing reasons,

diversity jurisdiction is lacking.
Moreover, as co-Plaintiff Jenkins’s claims have been
dismissed, Plaintiff Gay asserts damages in the amount of only
$45,000, below the jurisdictional limit for diversity
jurisdiction.
The Court is mindful that Plaintiff Gay appears here pro se
and therefore the complaint is to be held to less stringent
standards than formal pleadings drafted by lawyers.
Kerner, 404 U.S. 519 (1972).

Haines v.

Nonetheless, the Court can discern

no basis for asserting jurisdiction over this action.

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V.

CONCLUSION

For the reasons set forth above, co-Plaintiff Jenkins’s
claims will be dismissed without prejudice for failure to satisfy
the filing fee requirement and Plaintiff Gay’s claims will be
dismissed without prejudice for lack of jurisdiction.
An appropriate Order follows.

s/Peter G. Sheridan
PETER G. SHERIDAN,U.S.D.J.
October 1, 2012

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