United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
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. §
SUMMARY OF COMPLAINT
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.
APPLICABLE LEGAL STANDARDS ON INITIAL 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. 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).
DISCUSSION OF CLAIMS
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
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.
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.
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.Thus, the allegations of the ...