United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE.
filed their pro se Complaint on March 22, 2018 (Filing No.
1), and were granted leave to proceed in forma pauperis on
April 3, 2018 (Filing No. 5). The court now conducts an
initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
each claim to own a 1/3 interest in a farm located in Platte
County, Nebraska, by the terms of their mother's will,
which was probated in 1996. Their sister, Defendant Lynda
Bowen, allegedly inherited the remaining 1/3 interest, but
apparently claims full ownership. Plaintiffs also allege that
Defendant Daniel Fuller served them with a notice to quit the
APPLICABLE 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. 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).
DISCUSSION OF CLAIM
Plaintiffs style their pleading as a “criminal
complaint, ” private citizens cannot prosecute criminal
actions. In re Higgins, No. 8:15-CV-103, 2015 WL
1651424, at *1 (D. Neb. Mar. 23, 2015). The prosecution of
criminal actions in the federal courts is a matter solely
within the discretion of the Attorney General of the United
States and duly authorized United States Attorneys.
Complaint also references a “civil rights violation,
” but no facts are alleged to establish such a
violation. Civil rights actions in federal court can be
brought pursuant to 42 U.S.C. § 1983. But to state a
claim under that section, 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). Plaintiff's Complaint fails on both counts.
Thus, the court cannot exercise “federal
question” jurisdiction in this case. See 28
U.S.C. § 1331.
district courts may also exercise “diversity of
citizenship” jurisdiction under 28 U.S.C. § 1332,
but the state citizenship of each plaintiff must be different
from the state citizenship of each defendant. Ryan v.
Schneider Nat'l. Carriers, Inc., 263 F.3d 816, 819
(8th Cir. 2001). In this case, Plaintiffs and their sister
all reside in Nebraska, which presumably is also the state
where each of them are citizens. In addition, the amount in
controversy for “diversity of citizenship”
jurisdiction must be greater than $75, 000.00. 28 U.S.C.
§ 1332(a). Plaintiff's allegations do not indicate
the amount in controversy.
even if subject-matter were to exist in this case,
Plaintiffs' Complaint does not contain “a short and
plain statement of the claim showing the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). The court is unable
to determine from the allegations of the Complaint that
Plaintiffs might be entitled to obtain relief of any kind
from Defendants under any possible theory of recovery.