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Swift v. Osler

United States District Court, D. Nebraska

December 8, 2017

ARNETTA SWIFT (NEE) HILL, and CHARLES SWIFT, Plaintiffs,
v.
BRENDA OSLER, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         Plaintiffs Arnetta Swift (Nee) Hill and Charles Swift filed their Complaint (Filing No. 1) on November 15, 2017, and have been granted leave to proceed in forma pauperis (Filing No. 5). The court now conducts an initial review of Plaintiffs' Complaint to determine whether summary dismissal is appropriate under 28U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiffs allege that Defendant Brenda Osier ("Osier") abused their minor children while the children were placed with Osier in foster care between June and November of 2016. Plaintiffs allege that they reported their concerns about the abuse and the children's safety to Debra Barnett and Angie Williams with Nebraska Family Collaborative; Plaintiffs' GAL, Marriette Achibu; and Matthew Kahler.

         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). 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. § 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." 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.").

         "The 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. Sounders, 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).

         III. DISCUSSION OF CLAIMS

         Plaintiffs indicate their action is filed pursuant to 42 U.S.C. § 1983. To state a § 1983 cause of action, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). As will be discussed below, there are several problems with Plaintiffs' Complaint.

         A. Jurisdiction

         Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The subject-matter jurisdiction of the federal district courts is generally set forth in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available only when a "federal question" is presented (i.e., in a civil action arising under the Constitution, laws, or treaties of the United States) or when the parties are of diverse citizenship and the amount in controversy exceeds $75, 000.

         Here, Plaintiffs caption their action as a "1983 civil action, " (Filing No. 1), but fail to allege that Osier is a state actor or that her conduct is attributable to the state. See West, 487 U.S. at 49 ("The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'"); see also Filarsky v. Delia, 566 U.S. 377, 383 (2012) ("Anyone whose conduct is 'fairly attributable to the state' can be sued as a state actor under § 1983."). Consequently, there is no discernible "federal question" alleged in the Complaint as Plaintiffs have failed to state a claim under 42 U.S.C. §1983.

         Moreover, Plaintiffs have not alleged that Osier is a citizen of a different state nor have they alleged that the amount in controversy exceeds $75, 000 as required by 28 U.S.C. § 1332.[1]Thus, the allegations of the ...


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