United States District Court, D. Nebraska
JOSEPH A. KURTZ, Plaintiff,
JARED PLOG, and GINA 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 July 16, 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
names Jared Plog, the janitor of Kurtz's apartment
complex, and Gina Baldwin, a resident of the same apartment
complex, as defendants in this action. Liberally construed,
Kurtz also sues “Warren House, ” a corporation.
(Filing No. 1 at CM/ECF p. 4.) Kurtz alleges
“[n]o apartment repair of any kind done after recieving
[sic] written notice [and] [a]lso had water damage which
[Kurtz] cleaned up himself [on] 07-03-2018.” (Id.
at CM/ECF p. 3.) Kurtz seeks “$3414.00 for last
six months informed Warren House of repairs yet, nothing was
done.” (Id. at CM/ECF p. 4.)
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
evaluating Kurtz's claims, the court must determine
whether subject-matter jurisdiction is proper.
SeeFed. 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. (SeeFiling 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.
Federal Question Jurisdiction
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 the 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
Diversity of ...