Pusser v. Job Services North Dakota

Filing 7

ORDER dismissing 5 Complaint filed by Tammy Pusser without prejudice. By Magistrate Judge Charles S. Miller, Jr. (BG) Distributed on 4/19/2017 (cjs).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Tammy Pusser,
Plaintiff,

vs.
Job Service North Dakota,
Defendant.

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ORDER OF DISMISSAL

Case No. 1:17-cv-063

Plaintiff initiated the above-entitled action pro se by complaint on April 3, 2017. She filed
her consent to the undersigned’s exercise of jurisdiction over this matter on April 17, 2017. (Docket
No. 6). What follows is the undersigned’s pre-service review of her complaint pursuant to 28
U.S.C. § 1915(e)(2)
I.

BACKGROUND
Plaintiff, proceeding pro se and in forma pauperis, is seeking judicial review of the decision

by Job Service North Dakota to deny her application for unemployment benefits. She asserts:
I was denied benefits on 01/09/2017. I filed a request for an appeal hearing by
phone. The hearing was scheduled for 02/02/2017 between 8am and 10am. I
confirmed by calling 1-800-351-9098. I never received the call so [I] contacted them
by 10:15 a.m. to see why [I] was contacted. The receptionist advised me to request
a bureau review. I explained that [I] had confirmed my hearing and spoke with my
instructor to have permission to have my phone in class so [I] won’t miss the call.
I was denied because the reason for failing to participate in the Appeal Hearing was
considered to not be with good cause. I have attached these documents.
I was scheduled for an appeal hearing on 02/16/2017 and was denied benefits due to
being a full time student and not available for work, I requested a bureau review and
was denied . . . .
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I . . . request the Court to review the decision of Job Services.

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(Docket No. 5).
II.

DISCUSSION
A.

Standard of Review

28 U.S.C. § 1915(e)(2) provides that, notwithstanding financial eligibility, “the court shall
dismiss the case at any time if the court determines that . . . the action (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” In applying the provisions of § 1915(e)(2), the court
must give the pro se complaint the benefit of a liberal construction and not dismiss the complaint
unless it is clear beyond doubt that there is no set of facts that would entitle the plaintiff to relief.
Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se complaints are “subject to less stringent
standards than formal pleadings drafted by lawyers”); Atkinson v. Bohn, 91 F.3d 1127, 1128-29 (8th
Cir. 1996); see also Fed. R. Civ. P. 8(a)(2) (requiring that a claim for relief contain “a short and plain
statement of the claim showing that the pleader is entitled to relief[.]”); Stone v. Harry, 364 F.3d
912, 914 (8th Cir. 2004) (directing that pro se complaints be liberally construed but with the caveat
that courts “will not supply additional facts, nor . . . construct a legal theory for plaintiff that assumes
facts that have not been pleaded.”).
B.

Jurisdictional Issues

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). Consequently, this court can only exercise subject matter
jurisdiction over “civil actions arising under the Constitution, laws or treaties of the United States,”
28 U.S.C. § 1331, or civil actions wherein there is diversity of citizenship between parties and the
matter in controversy exceeds $75,000.00, 28 U.S.C. § 1332. And it is incumbent upon the plaintiff

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to establish the existence of federal jurisdiction. Id., see also McCracken v. Conoco Phillips Co.,
335 F. App'x 161, 162–163 (3d Cir. 2009).
Here, plaintiff has failed to identify any federal statute or Constitutional right allegedly
violated by defendants. Even if plaintiff’s complaint could somehow be construed to raise a claim
under the Civil Rights Act, 42 U.S.C. § 1983, it lacks any factual allegations suggesting what
constitutional right was allegedly violated. To state a cognizable claim under § 1983, a plaintiff
must normally allege a violation of a right secured by the Constitution or the laws of the United
States and that the alleged deprivation was committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997). Even
under liberal pleading standards, a pro se litigant, at the very least, must invoke rights under the
Constitution or federal law in order to plead a § 1983 claim. Walker v. Reed, 104 F.3d at 157-58
Plaintiff has failed to do so here and thus has not established that this court has subject matter
jurisdiction under 28 U.S.C. § 1331.
In addition, based on the allegations in the complaint, it does not appear that the amount in
controversy comes anywhere close to meeting the requisite amount in controversy. Thus, plaintiff
cannot establish subject matter jurisdiction under 28 U.S.C. § 1332.
III.

CONCLUSION
Plaintiff is looking to this court to review an agency decision regarding her entitlement to

employment benefits. This court does not have the power to intervene in unemployment
compensation proceedings conducted by a state agency. If plaintiff is dissatisfied with defendant’s
determination, she should avail herself to the remedies and or appeals available through the
appropriate North Dakota agencies and/or courts. Accordingly, the above-entitled action is

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DISMISSED without prejudice for lack of jurisdiction.
Dated this 19th day of April, 2017.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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