Wright v. Wright et al

Filing 4

OPINION AND ORDER by Judge Claire V Eagan that the complaint (Dkt. # 1) is hereby dismissed without prejudice. Plaintiff may file an amended complaint on or before May 9, 2012. Plaintiff's Motion for Leave to Proceed In Forma Pauperis and Supporting Affidavit (Dkt. # 2) and plaintiff's motion for appointment of counsel (Dkt. # 3) are denied. Plaintiff is directed to pay the $350 filing fee immediately. Failure to pay the fee may result in dismissal of this action. ; denying 3 Motion for Appointment of Counsel; denying 2 Motion for Leave to Proceed in Forma Pauperis (Re: 1 Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

RUSSELL KEVIN WRIGHT,
Plaintiff,
v.
KYLE WRIGHT and REX HARPER,

Defendants.

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Case No. 12-CV-0228-CVE-TLW

OPINION AND ORDER
Now before the Court are plaintiff’s Motion for Leave to Proceed In Forma Pauperis and
Supporting Affidavit (Dkt. # 2) and plaintiff’s motion for appointment of counsel (Dkt. # 3).
Plaintiff, appearing pro se, has filed a complaint (Dkt. # 1) under 42 U.S.C. § 1983, alleging
violation of his constitutional rights.
Plaintiff’s complaint consists mainly of a one page handwritten narrative, which is largely
incoherent and provides very little information as to the dates on which events occurred. Plaintiff
alleges that defendants are liable for “harassment, false accusations, [lying] on police report, [lying]
about stalking and domestic violance [sic], [and] false statement.” Dkt. # 1 at 1. The allegations
in the complaint appear to stem from an ongoing dispute between plaintiff and defendant Harper.
Plaintiff alleges that six years ago, Harper stole $250 from plaintiff. Plaintiff alleges that, since then,
Harper laughs and makes “facial gestures” toward plaintiff. At some point, plaintiff told Harper that
he owed him $250 and needed to leave plaintiff alone. On another occasion, plaintiff saw Harper
while he was driving and Harper ran to the police station. Harper accused plaintiff of stalking him.
Plaintiff states that he did once give Harper “the bird” and called him a chump. Plaintiff alleges that,

at some point in time, Officer Wright pulled plaintiff over in front of Harper’s home. Apparently,
Officer Wright arrested plaintiff as a result of this incident, although plaintiff does not explicitly
state that he was arrested. Plaintiff merely states that Officer Wright lied in his police report and
“caused me a felony warrant.” Plaintiff further states that his state court criminal case is still
ongoing.
The Court has a duty to examine a complaint for subject matter jurisdiction. The Federal
Rules of Civil Procedure state in pertinent part that “[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis
added). Plaintiff does not state the statutory basis pursuant to which he asserts this Court has
jurisdiction to hear this case. However, plaintiff has designated his case as a § 1983 civil rights case.
Thus, it would seem jurisdiction is asserted under 28 U.S.C. § 1331. The Court finds that such
jurisdiction is lacking.
Generally, the “well-pleaded complaint” rule requires that the federal question appear on the
face of the plaintiff’s properly pleaded complaint. See Garley v. Sandia Corp., 236 F.3d 1200, 1207
(10th Cir. 2001) (“The presence or absence of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.”)(citing Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987)). “The complaint must identify the statutory or
constitutional provision under which the claim arises, and allege sufficient facts to show that the
case is one arising under federal law.” Collins v. County of Johnson, Kan., No. 01-2227-JWL, 2001
WL 950259, at *1 (D. Kan. July 12, 2001) (quoting Martinez v. United States Olympic Comm., 802
F.2d 1275, 1280 (10th Cir. 1986)).

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Section 1983 provides a cause of action against state actors for violation of a plaintiff’s
Constitutional rights. Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007). To succeed on a claim
under § 1983, a plaintiff must prove two essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated and (2) that the alleged violation was
committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988);
Anderson v. Suiters, 499 F.3d 1228, 1232-33 (10th Cir. 2007). Defendant Harper is a private citizen
and plaintiff has not alleged any theory under which Harper could be found to have acted under
color of state law. Plaintiff has failed to allege a legal basis on which he can proceed against Harper
under § 1983. See Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000) (“[A] § 1983 claim . . . based
on the conduct of a private individual” is appropriate only if that conduct “is fairly attributable to
the state.”) (internal quotation omitted). Thus, plaintiff’s § 1983 claim against Harper must fail and
this Court has no jurisdiction over plaintiff’s claims against Harper. See Hynoski v. Harmoston, 409
Fed. Appx. 231, 233 (10th Cir. 2011) (unpublished)1 (affirming district court’s dismissal of pro se
plaintiff’s § 1983 claim against private individual).
Plaintiff also fails to allege sufficient facts to show that his claim against Officer Wright
arises under federal law. Plaintiff has failed to identify a protected constitutional right that was
violated by Officer Wright. Thus, plaintiff has failed to show that his claim arises under federal law
and it must be dismissed for lack of subject matter jurisdiction. See Ross v. Pittinger, No. 06-CV0018-CVE-SAJ, 2006 WL 327551, at *1 (N.D. Okla. Jan. 18, 2006) (dismissing § 1983 claim sua
sponte for lack of subject matter jurisdiction where no constitutional violation alleged).

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Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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The Court has determined, sua sponte, that dismissal of plaintiff’s claims against defendants
is warranted for lack of subject mater jurisdiction. Plaintiff is given leave to amend the complaint,
on or before May 9, 2012, to set forth facts sufficient to establish federal jurisdiction.
As to the motion to proceed in forma pauperis, plaintiff’s affidavit reveals that plaintiff
receives a monthly income of $3,410 and has monthly expenses of $1,530. See Dkt. # 2. Because
plaintiff’s monthly income appears to substantially exceed his expenses, plaintiff should be able to
pay the filing fees in this action.
As to the motion to appoint counsel, although a criminal defendant is guaranteed assistance
of counsel in proceedings against him, it is well-established that the right to counsel in a civil case
is not a matter of constitutional right under the Sixth Amendment. MacCuish v. United States, 844
F.2d 733, 735 (10th Cir. 1988); see also Caruth Pinkney, 683 F.2d 1044, 1048 (7th Cir. 1982)
(collecting cases so holding). The Court may appoint counsel to represent any person unable to
afford counsel. 28 U.S.C. § 1915(e)(1). In deciding a party’s motion for appointment of counsel,
the Court considers (1) the merits of the litigant’s claims; (2) the nature of the factual issues raised
in the claims; (3) the litigant’s ability to present her claims; and (4) the complexity of the legal issues
raised by the claims. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Having considered
these factors and having carefully reviewed plaintiff’s complaint, the Court denies plaintiff’s motion
to appoint counsel.
IT IS THEREFORE ORDERED that the complaint is hereby dismissed without
prejudice. Plaintiff may file an amended complaint on or before May 9, 2012.
IT IS FURTHER ORDERED that plaintiff’s Motion for Leave to Proceed In Forma
Pauperis and Supporting Affidavit (Dkt. # 2) and plaintiff’s motion for appointment of counsel (Dkt.

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# 3) are denied. Plaintiff is directed to pay the $350 filing fee immediately. Failure to pay the fee
may result in dismissal of this action.
DATED this 25th day of April, 2012.

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