KELLY v. MS. SANDCHEZ, et al, No. 1:2008cv03702 - Document 2 (D.N.J. 2008)
Court Description: OPINION. Signed by Judge Jerome B. Simandle on 9/9/2008. (nf, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY EUGENE I. KELLY, Plaintiff, v. MS. SANDCHEZ LUNA INVESTMENT NEPTUNE, Defendant. : : : : : : : : : : : Civil Action No. 08-3702 (JBS) OPINION APPEARANCES: EUGENE I. KELLY, Plaintiff pro se #164876 Atlantic County Justice Facility 5060 Atlantic Avenue Mays Landing, New Jersey 08330 SIMANDLE, District Judge Plaintiff Eugene I. Kelly ( Kelly ), currently a state inmate confined at the Atlantic County Justice Facility in Mays Landing, New Jersey, seeks to bring this action in forma pauperis, alleging violations of his constitutional rights under 42 U.S.C. § 1983. Based on his affidavit of indigence, the Court will grant plaintiff s application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file the Complaint. At this time, the Court must review the Complaint, pursuant to 28 U.S.C. § 1915(e)(2), to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court concludes that the Complaint should be dismissed for lack of subject matter jurisdiction. I. BACKGROUND Kelly brings this action, pursuant to 42 U.S.C. § 1983, against defendant Ms. Sandchez of Luna Investment in Neptune, New Jersey. Kelly asserts that defendant is the owner of the building where he was residing. return his deposit in full. He claims that defendant won t Kelly had given defendant a security deposit of $1,550.00, and defendant had returned only $800.00 of the security deposit. Kelly seeks to recover the $750.00 difference, which is the amount allegedly owed to him from his security deposit. II. STANDARDS FOR A SUA SPONTE DISMISSAL The Prison Litigation Reform Act ( PLRA ), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a governmental employee or entity. The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a 2 defendant who is immune from such relief. 1915(e)(2)(B) and 1915A. 28 U.S.C. §§ Here, plaintiff was a prisoner who is proceeding in forma pauperis, and he is asserting claims against government prison officials with respect to incidents occurring while he was confined. Consequently, this action is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) because he is proceeding as an indigent. In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. See Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200 (2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). See also The Court must accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however, credit a pro se plaintiff s bald assertions or legal conclusions. Id. In short, a pro se prisoner plaintiff simply need comply with the pleading requirements of Rule 8(a)(2)(complaint should contain a short and plain statement of the claim showing that the pleader is entitled to relief ). 2200. See Erickson, 127 S.Ct. at Thus, a complaint must plead facts sufficient at least to 3 suggest a basis for liability. 218, 236 n. 12 (3d Cir. 2004). Spruill v. Gillis, 372 F.3d Specific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests. Erickson, 127 S.Ct. at 2200 (citations omitted). While a complaint ... does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986)(on a motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a factual allegation ). Factual allegations must be enough to raise a right to relief above the speculation level. ... Bell v. Atlantic Corp. v. Twombly, 550 U.S. , 127 S.Ct. 1955, 1964-65 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Accordingly, a pro se prisoner plaintiff may allege only enough factual matter (taken as true) to suggest the required elements of the claim(s) asserted. Twombly, supra; Phillips v. Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a complaint is frivolous is an objective one. Deutsch v. United States, 67 F.3d 1080, 1086-87 (3d Cir. 1995). A pro se complaint may be dismissed for failure to state a claim only if it appears beyond doubt that the plaintiff can 4 prove no set of facts in support of his claim which would entitle him to relief. Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981). However, where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker, 363 F.3d 229 (3d Cir. 2004)(complaint that satisfied notice pleading requirement that it contain short, plain statement of the claim but lacked sufficient detail to function as a guide to discovery was not required to be dismissed for failure to state a claim; district court should permit a curative amendment before dismissing a complaint, unless an amendment would be futile or inequitable); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). III. DISCUSSION Plaintiff brings this action pursuant to 42 U.S.C. § 1983. He utilizes the § 1983 complaint form, but does not actually allege any violations of his civil rights as guaranteed under the United States Constitution. Section 1983 provides in relevant part: 5 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... . Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). In this case, Kelly fails to satisfy either prong of a § 1983 action. He does not actually allege the violation of a right secured by the United States Constitution. Further, the named defendant in this Complaint is not a person acting under color of state law. Consequently, the Complaint does not state a claim upon which relief may be granted under § 1983. To the extent that Kelly may be bringing a state law tort or contract claim for recovery of the $750.00 allegedly owed to him by defendant, this matter is subject to dismissal for lack of subject matter jurisdiction. Kelly can bring such state or common law claims in federal district court pursuant to 28 U.S.C. § 1332(a), if the matter in controversy exceeds the sum or value of $75,000, and is between citizens of different states. 6 It has long been recognized that, to found jurisdiction upon § 1332, there must be complete diversity among all parties, i.e., each plaintiff must be a citizen of a different state from each defendant. Owen Equipment and Erection Co. V. Kroger, 437 U.S. 365 (1978). In particular, if a sole plaintiff and any one of several defendants are citizens of the same state, complete diversity is lacking and the action would have to be dismissed for lack of jurisdiction. Id. Here, there does not appear to be diversity of jurisdiction between the plaintiff and the defendant. Plaintiff is currently confined in the ACJF in New Jersey, and the defendant appears to reside in Neptune, New Jersey, and the rental property at issue is also in Neptune, New Jersey.1 These facts suggest that the defendant likely resides in the State of New Jersey. Moreover, the amount in controversy is $750.00, substantially less than the jurisdictional requirement of $75,000. Therefore, because complete diversity appears to be lacking, and the amount in controversy does not satisfy the jurisdictional requirement, this Court has no subject matter jurisdiction over any state law claim that may be construed from the Complaint against this defendant, pursuant to 28 U.S.C. § 1332(a). Plaintiff may seek to reopen this case if he can show facts to support diversity jurisdiction. 1 Plaintiff does not provide the domicile or residence of the defendant, except to note that the rental property is in Neptune, New Jersey. 7 V. CONCLUSION Therefore, for the reasons set forth above, the Complaint will be dismissed without prejudice, in its entirety, for lack of subject matter jurisdiction. An appropriate order follows. s/ Jerome B. Simandle JEROME B. SIMANDLE United States District Judge Dated: September 9, 2008 8
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