United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
filed a Complaint on August 10, 2017. (Filing No. 1.) He has
been granted leave to proceed in forma pauperis. (Filing
No. 5.) The court now conducts an initial review of
Plaintiff's Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
brings this action against Maureen Haney and Legal Aid of
Nebraska. Plaintiff alleges that Randy James and Vandelay
Investments committed fraud when they obtained a tax deed for
Plaintiff's home and later caused him to be evicted from
his home, because they did not comply with certain
prerequisites required by Nebraska law for issuance of a tax
deed. He believes that his personal and civil rights were
violated. (Filing No. 1.) With regard to Legal Aid of
Nebraska, Plaintiff asserts that it “never entered with
the court as [his] attorney”; failed to charge Randy
James and Vandelay Investments with fraud “as discussed
upon [his] signed retainer agreement”; would not appear
at his hearing on April 24, 2014; and tried to get him to
drop his case and settle for $8000. (Id. at CM/ECF
pp. 1-2.) He seeks unspecified damages and a hearing.
APPLICABLE STANDARDS OF REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The court must dismiss
a complaint or any portion of it 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. §
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” 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.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
matter jurisdiction is proper pursuant to 28 U.S.C. §
1332, commonly referred to as “diversity of
citizenship” jurisdiction. For purposes of 28 U.S.C.
§ 1332, “diversity of citizenship” means
that “the citizenship of each plaintiff is different
from the citizenship of each defendant.” Ryan v.
Schneider Nat'l Carriers, Inc., 263 F.3d 816, 819
(8th Cir. 2001). In addition, the amount in controversy must
be greater than $75, 000.00 for diversity of citizenship
jurisdiction. 28 U.S.C. § 1332(a). Even assuming that
the amount in controversy is $90, 600, the alleged 2013
assessed value of Plaintiff's home, Plaintiff has
not established diversity of citizenship. The court
previously made Plaintiff aware of this requirement in a suit
Plaintiff brought against Randy James and Vandelay
Investments. See Fraction v. James and Vandelay
Investments, Case No. 8:14CV348, Filing No. 7 (D. Neb.
April 17, 2015).
Federal Question Jurisdiction
matter jurisdiction is also 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). Liberally construed, Plaintiff
fails to allege a violation of his civil rights under 42
U.S.C. § 1983. Moreover, to obtain relief under 42
U.S.C. § 1983, a plaintiff must show (1) the deprivation
of a right secured by the Constitution or laws of the United
States, and (2) that a person acting under color of state law
caused the deprivation. West v. Atkins, 487 U.S. 42,
48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th
Cir. 1993). If the actions of the defendant were “not
state action, our inquiry ends.” Rendell-Baker v.
Kohn, 457 U.S. 830, 838 (1982). 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