Perry v. Lab Corp et al

Filing 3

ORDER signed by Judge Rudolph T Randa on January 24, 2006. Perry shall submit a statement explaining the jurisdictional basis of the present action no later than February 24, 2006. (cc: via US Mail to Fred L Perry)(Randa, Rudolph)

Perry v. Lab Corp et al

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Case 2:06-cv-00102-RTR

Filed 01/24/2006

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

F R E D L. PERRY, P l a i n t i f f, v. L A B CORP, SUBSTANCE ABUSE MANAGEMENT INC., and CONCENTRA MEDICAL CENTER, Defendants. C a s e No. 06-C-0102

DECISION AND ORDER

O n January 23, 2006, the Court received the complaint of Fred Perry ("Perry") and h is request to proceed in forma pauperis (IFP). Perry's complaint alleges that he, as a re q u ire m e n t of his employment as a commercial driver, submitted to a random drug test, w h ich he failed. (Compl. 4.) Perry claims that this failure resulted in the termination of his e m p lo ym e n t. (Id.) However, he alleges that the test results were prompted not by the i n g e s t i o n of any illicit drugs, but by cough syrup containing both codeine and morphine. P e rry complains that the testing did not conform to federal testing standards established for c o m m e rc ia l drivers, and the defendants were negligent in their testing and/or setting of stan d ard s related to the drug test. Accordingly, he seeks "an unspecified amount of monetary a n d punitive damages by [sic] the defendants for negligence." (Id. 6.)

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T o authorize a litigant to proceed in forma pauperis, the Court must make two d e te rm in a tio n s : (1) whether the litigant is unable to pay the costs of commencing the action; a n d (2) whether the action warrants dismissal because it is frivolous or malicious, fails to s ta te a claim on which relief may be granted, or seeks monetary relief against a defendant w h o is immune from such relief. 28 U.S.C. §§ 1915(a)(1) & (e)(2). The Court is obliged to g i v e Perry's pro se allegations, however unartfully pleaded, a liberal construction. See H a in e s v. Kerner, 404 U.S. 519, 520-21 (1972). Having reviewed Perry's financial affidavit, the Court finds that he has established h is inability to pay the filing costs associated with commencing his action. Next, the Court c o n s id e r s whether Perry's complaint should be dismissed because it is frivolous or malicious, f a ils to state a claim on which relief may be granted, or seeks monetary relief against a d e f en d a n t who is immune from such relief. 28 U.S.C. §§ 1915(e)(2). Before reaching that in q u iry, the Court first raises a jurisdictional concern. At any point in a proceeding, a court may inquire into the jurisdictional basis of an a c tio n pending before it. See Fed. R. Civ. P. 12(h)(3); Hay v. Ind. State Bd. of Tax Comm'rs, 3 1 2 F.3d 876, 879 (7th Cir. 2002) (citing Ruhrgas v. Marathon Oil Co., 526 U.S. 574, 577 (1 9 9 9 )). In the present instance, Perry asks for relief from the defendants' negligence. This re q u e st articulates a state tort, rather than a federal cause of action.1 If Perry is claiming
Perry's complaint may be interpreted as suggesting that the Defendants' failure to conform to the requirements o f the Code of Federal Regulations supports a claim of negligence. Alternatively or additionally, Perry may think that th e purported violation of the Code of Federal Regulations sufficiently states a federal claim. This reading does not allay th e Court's jurisdictional concerns. A violation of the federal regulations does not automatically create a private, federal c a u s e of action.
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w ro n g f u l termination, that too is a state cause of action. Thus, based on the complaint, this C o u rt cannot say, with certainty, that it has jurisdiction over Perry's action pursuant to 28 U .S .C . § 1331. Nor may the Court exercise diversity jurisdiction pursuant to 28 U.S.C. § 1 3 3 2 because two of the defendants appear to be residents of the same state as Perry. Perry's complaint was submitted on a form made available by courts for litigants who a re proceeding pro se. Despite the plain wording of Rule 8 of the Federal Rules of Civil P ro c e d u re requiring a "a short and plain statement of the grounds upon which the court's jurisd ic tio n depends," that form does not require an explanation of the basis for a litigant's in v o c a tio n of the Court's jurisdiction. The Court, therefore, will stay further consideration o f Perry's IFP request and will give him an opportunity to explain why he thinks this Court h a s subject matter jurisdiction over his action. If Perry cannot provide a basis for invoking th e Court's jurisdiction, his action will be dismissed. Lest there should be any confusion, P e rry should not take any further action in this case until he has satisfied the Court that it d o e s , in fact, have jurisdiction over his claim.

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N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: P e rry SHALL submit a statement explaining the jurisdictional basis of the present a c tio n no later than February 24, 2006. If Perry has not submitted an explanation by that d a te , the Court will understand that he cannot identify any basis for the Court's exercise of s u b je c t matter jurisdiction over his action and it will be dismissed accordingly. Dated at Milwaukee, Wisconsin this 24th day of January, 2006. BY THE COURT

s / Rudolph T. Randa Hon. Rudolph T. Randa C h ie f Judge

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