United States District Court, D. Nebraska
JOSEPH A. KURTZ, Plaintiff,
MICHELLE DOE #4, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Joseph A. Kurtz, filed this case on June 28, 2018, and has
been granted leave to proceed in forma pauperis. 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
action is brought against an individual whose first name is
either Michelle or Mitchell,  and who, from the addresses
provided in the Complaint, apparently lives the same
apartment complex as Plaintiff in Omaha, Nebraska. Plaintiff
indicates (by checking box on the court's standard form
pro se complaint) that “federal question”
jurisdiction under 28 U.S.C. § 1331 applies to his
claim, but he does not cite any provision of the United
States Constitution, federal statute, or federal treaty.
Instead, he asks: “Is it right to steal apartment keys,
from normal behavior resident[?]” (Filing No. 1 at
CM/ECF p. 3) This constitutes the totality of
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).
construing Plaintiff's Complaint as alleging a claim for
unspecified relief under 42 U.S.C. § 1983, it fails to
state a claim upon which relief may be granted. “To
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988). “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.” Id. at 49.
To state a claim against a private actor, a plaintiff must
allege facts establishing “not only that a private
actor caused a deprivation of constitutional rights, but that
the private actor willfully participated with state officials
and reached a mutual understanding concerning the unlawful
objective of a conspiracy.” Crawford v. Van Buren
Cty., 678 F.3d 666, 670-71 (8th Cir. 2012) (quoting
Dossett v. First State Bank, 399 F.3d 940, 951 (8th
Plaintiff is alleging that Defendant stole his apartment
keys, there is no indication that Defendant acted under color
of state law, nor is there any suggestion that Plaintiff was
deprived of any federally protected right. And because
Plaintiff alleges that he and Defendant are both Nebraska
citizens, there is no basis for the court to exercise
diversity jurisdiction under 28 U.S.C. § 1332, which
also requires that the amount in controversy exceed $75,
000.00. “It is axiomatic that a court may not proceed
at all in a case unless it has jurisdiction.”
Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d 760,
764 (8th Cir. 2001).
court does not appear to have subject-matter jurisdiction in
this case, and, in any event, the allegations of the
Complaint are frivolous. The court therefore concludes that
granting Plaintiff leave to amend would be futile.
IT IS ORDERED that Plaintiff's Complaint is dismissed
without prejudice, and Judgment ...