Porter v. Bonsteel

Filing 2

OPINION AND ORDER granting 1 MOTION for Leave to Proceed in Forma Pauperis filed by Christine Porter and this case is DISMISSED WITHOUT PREJUDICE. Plaintiff is GRANTED leave to file an amended complaint within 30 days of the date of this Opinion and Order. Failure to file an Amended Complaint consistent with this Opinion and Order may result in a final judgment dismissing the case. Signed by District Judge J. Garvan Murtha on 7/8/2015. (esb)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Christine Porter,
Plaintiff,
v.
Dr. Alan Bonsteel,
Defendant.

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Case No. 1:15-cv-155-jgm

OPINION AND ORDER
(Doc. 1)
Plaintiff Christine Porter, proceeding pro se, moves to
proceed in forma paurperis against Defendant Dr. Alan Bonsteel,
alleging state law medical negligence (Docs. 1, 1-1.) Because the
financial affidavit in support of the motion meets the
requirements of 28 U.S.C. § 1915(a), the motion for leave to
proceed in forma pauperis is GRANTED.

For the reasons set forth

below, however, this case is DISMISSED.
Discussion
Ms. Porter alleges that on February 22, 2012, Dr. Bonsteel
prescribed her levothyroxine, which caused her to have an
allergic reaction resulting in “inflademia to the lower extremity
of both legs.”

(Doc. 1-1 at 3.)

Porter continues to suffer from

this chronic condition, which requires ongoing medical treatment.
As relief, she seeks $3.3 million in monetary damages, as well as
injunctive relief.

Pro se filings are “to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citations omitted).

A district court may dismiss a

case, however, if it determines the complaint “is frivolous or
malicious; fails to state a claim on which relief may be granted;
or seeks monetary relief against a defendant who is immune from
such relief.”

28 U.S.C. § 1915(e)(2)(B).

Furthermore, federal courts “have an independent obligation
to consider the presence or absence of subject matter
jurisdiction sua sponte.”

Joseph v. Leavitt, 465 F.3d 87, 89 (2d

Cir. 2006); see also Fed. R. Civ. P. 12(h)(3) ("If the court
determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.").

"[T]he party asserting

federal jurisdiction bears the burden of establishing
jurisdiction."

Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d

Cir. 2006).
Here, because Porter’s claims arise under state law, she
must establish that diversity jurisdiction exists under 28 U.S.C.
§ 1332 in order to proceed. Section 1332 requires, in relevant
part, that: (1) "the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs;" and (2) the
matter "is between citizens of different States."

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28 U.S.C. §

1332.

"Complete diversity of citizenship" is required, meaning

that "diversity jurisdiction does not exist unless each defendant
is a citizen of a different state from each plaintiff."

Owen

Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)
(emphasis omitted).
Porter has not alleged sufficient facts to establish that
she and Dr. Bonsteel are citizens of different states.

She has

provided the Court with her resident address in Vermont.

She

does not allege, however, that Dr. Bonsteel is a resident of a
different state, nor can the Court infer otherwise from the
record.

Because Porter does not allege complete diversity of

citizenship, and no federal question claims exist, the Court
lacks subject matter jurisdiction.

Accordingly, the case is

DISMISSED WITHOUT PREJUDICE.
District courts generally should not dismiss a pro se
complaint without granting leave to amend. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

Because the current

record is incomplete, the Court cannot conclude that granting
leave to amend would be futile.

Accordingly, the Court GRANTS

Porter leave to file an amended complaint within thirty (30) days
of the date of this Opinion and Order.
CONCLUSION
For the reasons set forth above, after conducting the review
required under 28 U.S.C. § 1915(a)(1) and 1915(e)(2)(B), Porter’s

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motion to proceed in forma pauperis (Doc. 1) is GRANTED, and this
case is DISMISSED WITHOUT PREJUDICE.

Porter is GRANTED leave to

file an amended complaint within thirty (30) days of the date of
this Opinion and Order.

Any amended filing shall be entitled

"Amended Complaint" and must allege all claims and name all
Defendants Porter intends to include, as the Amended Complaint
will take the place of the original Complaint in all respects.
The Amended Complaint must allege sufficient facts to establish
diversity of citizenship among all parties under 28 U.S.C. §
1332, or otherwise allege an alternate basis of federal
jurisdiction.

Failure to file an Amended Complaint consistent

with this Opinion and Order may result in a final judgment
dismissing the case.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 8th
day of July, 2015.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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