Madden v. Bob Usry Plumbing

Filing 16

ORDER granting 13 Motion to Dismiss for Lack of Jurisdiction. The Court finds that Defendant is entitled to dismissal because Plaintiff has failed to establish a basis for this Courts jurisdiction, as more fully set out. Signed by Honorable David L. Russell on 8/26/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT ALAN MADDEN,
Plaintiff,
v.
BOB USRY,
Defendant.

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CIV-16-524-R

ORDER
Plaintiff, appearing pro se, filed this action alleging that Defendant failed to pay prevailing
wages, and that when he asked for his money he was fired. Defendant has filed a Motion to Dismiss
(Doc. No. 13). In response Plaintiff filed a document entitled “Appeal” wherein he set forth many
of the same statements included in his Complaint. Having considered the parties’ submissions, the
Court finds as follows.
“Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to
exercise jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted).
Federal district courts have original jurisdiction over all civil actions arising under the Constitution,
laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. § 1331; 28
U.S.C. § 1332. "A court lacking jurisdiction cannot render judgment but must dismiss the cause at
any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Because federal
courts are courts of limited jurisdiction, there is a presumption against jurisdiction, and the party
invoking federal jurisdiction, here Mr. Madden, bears the burden to prove its existence. Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

The Complaint was filed on a form intended for pro se civil rights complaints, and Plaintiff
checked two places to indicate potential grounds for federal court jurisdiction, 42 U.S.C. § 1983 and
Bivens v. Six Unknown Names Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 42
U.S.C. § 1983 claims require that the defendant be acting under color of state law. Pierce v.
Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004). Plaintiff alleges no facts that would enable a finding
that Bob Usry, who was apparently Plaintiff’s private employer, could be considered a state actor
for purposes of § 1983. Similarly, a Bivens action provides a basis for seeking relief from a federal
employee acting within the scope of employment for the violation of constitutional rights. See
Peoples v. CCA Detention Ctrs., 422 F.3d 1090, 1103 (10th Cir.2005). Plaintiff presents no facts that
would permit the Court to conclude that Mr. Usry meets this criteria. Rather, Plaintiff alleges that
Mr. Usry owns Bob Usry’s Plumbing, not that he is a federal employee.
Having reviewed the Complaint and giving Plaintiff’s allegations therein liberal construction
in light of his pro se status, the Court finds that Defendant is entitled to dismissal because Plaintiff
has failed to establish a basis for this Court’s jurisdiction. Accordingly, Defendant’s Motion to
Dismiss is hereby GRANTED.
IT IS SO ORDERED this 26th day of August, 2016.

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