United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed her Complaint on March 20, 2019. (Filing No. 1.) She
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
brings this action against Defendant Joan Campbell alleging
Defendant has failed to distribute the proceeds and interest
earned from two “T-note accounts” that were
established by Plaintiff's father and funded by
Plaintiff's SSI disability benefits awarded between 1984
and 1990. (Filing No. 1.) Plaintiff's father managed the
T-note accounts until his death in 1996, at which time
“Defendant was given the T-note investment funded by
Plaintiff's earlier SSI checks.” (Id. at
CM/ECF p. 1.)
alleges that, on or about October 31, 2007, Defendant,
through her lawyer, agreed to pay Plaintiff interest in the
amount of $4, 407.72 if Plaintiff “agreed to end the
matter.” (Id. at CM/ECF p. 3.) Plaintiff
agreed to the proposed settlement but “heard nothing
further from lawyer or Defendant and no check from
Defendant.” (Id.) As relief, “Plaintiff
seeks the amount Defendant proposed in 2007 and additional
damages from 2007 onward to present.” (Id.)
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
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 Plaintiff'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).
Liberally construed, Plaintiff's Complaint alleges breach
of contract claims. However, as discussed below, the
Complaint's allegations fail to establish that
jurisdiction is proper.
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).
Plaintiff does not allege any violation of her constitutional
rights, and the Complaint lacks any indication that Defendant
is a state actor. Moreover, even construing the Complaint
liberally, it simply does not contain allegations reasonably
suggesting Defendant violated a federal statute. Accordingly,