United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed his Complaint on February 21, 2019. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 6.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
brings this action against four Defendants: Creighton/CHI
Health, Annie E. Knierim, M.D., Rebecca Stormont, M.D., and
Virginia J. Smith, A.P.R.N. (Filing No. 1.)
Plaintiff alleges that he is a citizen of Nebraska. (Id.
at CM/ECF p. 3.) He alleges that Creighton/CHI Health
has its principal place of business in Nebraska, and he
provides the Nebraska work addresses of Defendants Knierim
and Smith and a Wisconsin address for Stormont. (Id. at
CM/ECF pp. 2- 3.) Condensed and summarized, the court
understands Plaintiff's claim to be that Defendants
denied him proper medical attention by refusing to test
“the medical hardware in the Plaintiff's lower
right leg for unseen energy, ” “harmful
chemicals, ” and “electromagnetic radiation and
frequency readings.” (Id. at CM/ECF pp. 4-5.)
Plaintiff alleges Defendants have misdiagnosed him “by
telling the Plaintiff that his sinuses cased the unseen
energy attacks and poison the Plaintiff was feeling.”
(Id. at CM/ECF p. 4.) Defendants also refuse to
remove the broken screw and medical hardware from
Plaintiff's leg “leaving the Plaintiff[']s life
in danger” of future harm from “Brain Tumors,
Cancer, along with major org[a]n failure.” (Id. at
CM/ECF pp. 4-5.) Plaintiff seeks removal of the medical
hardware and $2.25 million in monetary and punitive damages
for pain and suffering and mental anguish. (Id. at CM/ECF
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).
evaluating Plaintiff'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.”).
Plaintiff has alleged diversity of citizenship under 28
U.S.C. § 1332 as a basis for the court's
jurisdiction, (see filing no. 1 at CM/ECF p. 1), but
it is apparent from the Complaint that the court lacks
subject matter jurisdiction and this action must be
jurisdiction may be proper in federal court pursuant to 28
U.S.C. § 1332, commonly referred to as “diversity
of citizenship” jurisdiction. For purposes of 28 U.S.C.
§ 1332, “diversity of citizenship” means
that “the citizenship of each plaintiff is different
from the citizenship of each defendant.” Ryan v.
Schneider Nat'l Carriers, Inc., 263 F.3d 816, 819
(8th Cir. 2001) (citation omitted). In addition, the amount
in controversy must be greater than $75, 000.00 for diversity
of citizenship jurisdiction. 28 U.S.C. § 1332(a).
the Complaint states Plaintiff is a citizen of Nebraska and
states that Nebraska is also the place of incorporation and
principal place of business of Creighton/CHI Health. The
Complaint fails to state the citizenship of the individual
Defendants but lists Nebraska work addresses for two of the
Defendants. Based on these allegations, the Complaint fails
to establish that subject-matter jurisdiction is proper
pursuant to 28 U.S.C. § 1332.
subject matter jurisdiction is also 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).
Plaintiff does not set forth any allegation that could be
liberally construed to violate any federal statute.
Plaintiff's Complaint does not contain any allegations
reasonably suggesting Defendants violated Plaintiff's
constitutional rights while acting under color of state law.