United States District Court, D. Nebraska
JOSEPH A. KURTZ, Plaintiff,
GINA BALDWIN, MITCHELL, and JASON BALDWIN, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
Joseph A. Kurtz, a frequent filer in this court, filed his
Complaint on June 4, 2018. (Filing No. 1.) He has
been given leave to proceed in forma pauperis. (Filing
No. 5.) The court now conducts an initial review of
Kurtz's Complaint to determine whether summary dismissal
is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
alleges that he purchased a “touch pad phone” on
April 15, 2018, and he had the phone only fifteen hours
before it went missing from his apartment. (Filing No. 1
at CM/ECF p.6.) He reported the missing phone to the
police and purchased a replacement “flip up
phone.” (Id.) Kurtz complains that this is the
third phone he has had with the same phone number and he now
receives “phone harassing.” (Id.) He
seeks help to end the harassment as well as $500 in damages
from the Defendants.
APPLICABLE LEGAL STANDARDS ON IN 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. § 1915(e)(2)(B).
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 CLAIMS
evaluating Kurtz'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.”).
Furthermore, 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,
Kurtz alleges that the basis for the court's jurisdiction
is a federal question. (See Filing No. 1 at
CM/ECF p.3.) However, as discussed below, it is apparent
from the Complaint that the court lacks subject matter
jurisdiction and this action must be dismissed.
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. See Magee v. Tr. of Hamline
Univ, Minn., 747 F.3d 532, 536 (8th Cir. 2014).
Kurtz does not set forth any allegation that could be
liberally construed to violate any federal statute. Moreover,
even construing the Complaint liberally, it simply does not
contain allegations reasonably suggesting Defendants violated
Kurtz's constitutional rights while acting under color of
state law. Accordingly, Kurtz's allegations do not
establish that federal question jurisdiction exists in this
Diversity of ...