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Russell v. Glaser

United States District Court, D. Nebraska

August 15, 2014

MARY JO RUSSELL, Plaintiff,
v.
RON GLASER, DOUGLAS COUNTY HOUSING AUTHORITY, HUMAN RIGHTS AND RELATIONS DEPARTMENT, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, OMAHA HEALTH DEPARTMENT, and ORION PROPERTY GROUP, Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

This matter is before the court on its own motion. On May 22, 2014, the court ordered Plaintiff to file an amended complaint that sufficiently described her claims against Defendants. (Filing No. 8.) Plaintiff filed an Amended Complaint on June 20, 2014 (Filing No. 10), and a Supplement (Filing No. 11) to the Amended Complaint on June 23, 2014. The court now conducts an initial review of the Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF AMENDED COMPLAINT

Plaintiff names the following Defendants in her Amended Complaint: Orion Property Group, Hidden Valley Investments, The Reserve at the Knolls, Ron Glaser, the Douglas County Housing Authority, the Human Rights and Relations Department, the United States Department of Housing and Urban Development, and the Omaha Health Department. (Filing No. 10 at CM/ECF p. 1.) Plaintiff alleges the following occurred between May 22, 2013, and August 1, 2013:

Orion Property; AKA Hidden Valley Investments DBA The Reserve at the Knolls knowing and willfully put me in a massive infestation of Helminth Parasite, Parasitic of all life cycle stages of Helminth Worm Parasite and Parasitic along with other bad biting insects that would enter into unit apt. to feed off Helminth eggs only to their demise become host to parasite and die.

( Id. at CM/ECF p. 2.)

In Plaintiff's statement of jurisdiction, she alleges that subject-matter jurisdiction is proper in this court because the United States or a federal official is a party, her claim arises under the Constitution, laws or treaties of the United States, and her civil rights have been violated. ( Id. at CM/ECF p. 4.) For relief, Plaintiff seeks a "settlement award because [she] could die." ( Id. at CM/ECF p. 5.)

II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible, " or "their complaint must be dismissed" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).

III. DISCUSSION OF CLAIMS

Even when liberally construed, Plaintiff's allegations do not state a claim on which relief may be granted and fail to establish that this court has subject-matter jurisdiction over Plaintiff's claims. In evaluating Plaintiff's claims, the court must determine whether subject-matter jurisdiction is proper. See 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.") Furthermore, the plaintiff must sufficiently state a claim for relief that contains, "a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support." Fed.R.Civ.P. 8(a)(1). Here, Plaintiff alleges that her claims arise under the Constitution, laws or treaties of the United States, that her civil rights have been violated, and that a federal agency is a party to this action ( see Filing No. 1 at CM/ECF p. 4; Filing No. 10 at CM/ECF p. 4.) However, as discussed below, the court cannot determine whether jurisdiction is proper based on the information set forth in the Complaint and Amended Complaint.

A. Federal Question Jurisdiction

Subject-matter jurisdiction is proper where a plaintiff asserts "[a] non-frivolous claim of a right or remedy under a federal statute, " commonly referred to as "federal question" jurisdiction. Northwest South Dakota Prod. Credit Ass'n v. Smith, 784 F.2d 323, 325 (8th Cir. 1986). The mere suggestion of a federal question is not sufficient to establish the jurisdiction of federal courts, rather, the federal court's jurisdiction must affirmatively appear clearly and distinctly. Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990). Under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the deprivation of that right was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Courts have held that a private party's actions can be considered state action, or actions under color of state law, if the private party is a willful participant in joint ...


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