United States District Court, D. Nebraska
RICHARD L. CAMPBELL, Plaintiff,
SHELLY HEPBURN, individually Director of Our Homes Assisted Living; Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
Richard L. Campbell filed his Complaint on May 3, 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 Plaintiff's Complaint to
determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
has filed this action pursuant to 42 U.S.C. § 1983
against Defendant Shelly Hepburn (“Defendant”),
the Director of Our Homes Assisted Living, alleging Defendant
deprived him of his rights to due process and equal
protection under the Fifth and Fourteenth Amendments.
Plaintiff alleges that on April 13, 2018, Plaintiff went to
Our Homes Assisted Living to visit his brother and was denied
access by Defendant. Defendant informed Plaintiff that he was
banned and barred from the facility, no longer allowed to
visit his brother, and that he would be arrested if he
returned to the facility. Defendant did not provide Plaintiff
with any reason for banning and barring him. As relief,
Plaintiff seeks $250, 000 in compensatory damages and $250,
000 in punitive damages.
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. 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
has filed this action 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). Because
Plaintiff does not allege that Defendant is a person acting
under color of state law, he fails to state a § 1983
claim and, consequently, fails to set forth grounds for the
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.
Plaintiff alleges jurisdiction under 42 U.S.C. § 1983
“for violation of his civil rights . . . under color of
federal law, ” (filing no. 1 at CM/ECF p. 2,
¶ 3), but fails to allege that Defendant 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 Plaintiff has
failed to state a claim under 42 U.S.C. § 1983.
Plaintiff has not alleged that Defendant is a citizen of a
different state as required by 28 U.S.C. § 1332. Thus,
the allegations of the Complaint also fail to establish
diversity of citizenship jurisdiction.
court's own motion, Plaintiff will have 30 days in which
to file an amended complaint that clearly sets forth a ...