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Akins v. Wilson

United States District Court, D. Nebraska

October 28, 2014

SAMAR AKINS, Plaintiff,


RICHARD G. KOPF, Senior District Judge.

Plaintiff Samar Akins ("Plaintiff" or "Akins") filed his Complaint in this matter on July 30, 2014. (Filing No. 1.) Plaintiff has been granted leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts an initial review of Plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e).


Plaintiff brought this action against what appear to be two private parties, Michael Wilson and Keith Morris. Liberally construed, he alleges state law claims for breach of warranty, negligence, and wrongful eviction. In addition, Plaintiff states he is suing "on the grounds of racial discrimination and retaliation as a result of the illegal eviction proceedings conducted against him." (Filing No. 1 at CM/ECF p. 1.)

Akins alleges he discovered black mold growing in an apartment he rented from Defendants. He informed Defendants he would not make rent payments until repairs were made. In addition, he and his neighbors filed complaints with the mayor's office concerning the black mold. Thereafter, Akins was evicted from his apartment. Akins alleges he "was evicted because [he] complained about the hazardous conditions of [his apartment] and organized [his] neighbors to take action against Keith Morris and Mike Wilson." (Filing No. 1 at CM/ECF pp. 3-4.) Akins claims he and one of his children became ill as a result of the black mold. Akins states the "the defendants are white [and he] and [his] kids are Black." (Filing No. 1 at CM/ECF p. 4.) Akins seeks a total of $150, 000.00 in monetary damages from Defendants. (Filing No. 1 at CM/ECF p. 5.)


The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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); 28 U.S.C. § 1915A.

Therefore, where pro se plaintiffs do not set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible, 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) (overruling Conley v. Gibson, 355 U.S. 41 (1957), and setting new standard for failure to state a claim upon which relief may be granted). 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).


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.") A 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 has jurisdiction and the claim needs no new jurisdictional support." Fed.R.Civ.P. 8(a)(1). Here, Plaintiff alleges that his claims arise under 42 U.S.C. § 1983. (Filing No. 1 at CM/ECF p. 1.) However, as discussed below, the court cannot determine whether jurisdiction is proper based on the information set forth in the Complaint.

1. 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 activity with the State to deny constitutional rights. Magee v. Tr. of Hamline Univ, Minnesota, 747 F.3d 532, 536 (8th Cir. 2014); Dossett v. First State Bank, 399 F.3d 940, 947 (2005); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).

Here, Plaintiff does not set forth any allegation that could be liberally construed to violate any federal statute. Plaintiff has alleged a state law landlord-tenant dispute. However, he has failed to plausibly assert that any Defendant was acting under color of state law. See West, 487 U.S. at 49 (stating a person acts under color of law for purposes of 42 U.S.C. § 1983 if he "exercise[s] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law"). In addition, Plaintiff offers no factual content that would allow the court to draw the reasonable inference that Defendants ...

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