Ross v. Bonner, No. 3:2009cv01339 - Document 9 (N.D. Tex. 2009)

Court Description: FINDINGS AND RECOMMENDATIONS on case: Plaintiff's complaint should be summarily dismissed without prejudice for lack of subject matter jurisdiction. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 9/22/2009) (vdf)

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Ross v. Bonner Doc. 9 IN THE LINITEDSTATES DISTRICT COURT NORTHERN DISTzuCT TEXAS OF DALLASDIVISION MARY J. ROSS Plaintiff, VS. JOHN BONNER Defendant. $ $ $ $ $ $ $ $ $ NO.3-09-CV-1339-G FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE This casehas been referred to the United Statesmagistratejudge for pretrial management Thefindings pursuantto23U.S.C.$636(b)andastandingorderofreferencefromthedistrictcourt. and recommendationof the magistratejudge are as follow: I. Texas, This is a pro se civil rights action brought by Mary J. Ross,a residentof Hutchinso againstJohn Bonner, a private citizen. On July 15,2009, plaintiff tendereda one-pagehandwritten the complaint to the district clerk and filed an applicationto proceedinforma pauperis. Because that shelacksthe fundsnecessary informationprovidedbyplaintiffinherpauper'saffidavit indicates to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the were alsosentto plaintiff in orderto obtainadditional complaintto be filed. Written interrogatories information about the factual basisof her suit. Plaintiff answeredthe interrogatorieson September for that 17,2009. The court now determines this caseshouldbe summarilydismissed lack of subject matterjurisdiction. Dockets.Justia.com il. As best the court can decipher her pleadings, plaintiff appearsto allege that defendant violated her civil rights sometime in 2A04 by making inquiries about her at work and providing information to the Hutchins Police Departmentin an effort to haveplaintiff anested. Plaintiff further abouther medical condition. By this suit, plaintiff statements allegesthat defendantmadeslanderous and other relief. seeks$50,000in damages A. The court must initially examinethe basis for federal subjectmatterjurisdiction. Unless otherwise provided by statute,federal district courts have jurisdiction over: (1) federal questions arising under the Constitution,laws, or treatiesof the United States;and (2) civil actionsbetween citizens of different statesor foreign nationswhere the amount in controversyexceeds$75,000' exclusive of interest and costs. See28 U.S.C. $$ 133| & 1332(a). A party seekingto invoke the jurisdictionof afederal courtmustprovethatjurisdictionisproper. SeeBoudreauv. UnitedStates, cert.denied,1l6 S.Ct'771 (1996). 53 F.3d 81, 82 (5th Cir. 1995), B. Plaintiff has failed to allege a cognizableclaim arising under federal law. In her complaint and interrogatory answers,plaintiff attemptsto asserta civil rights claim againstdefendantunder42 Private U.S.C.$19S3. However,only"stateactors"maybesuedforfederalcivilrightsviolations' citizens, like defendant,become "stateactors" only when their conduct is "fairly attributable to the Oil State." Lugar v. Edmondson Co., 457 lJ.S. 922,937, 102 S.Ct.2744,2753, 73 L.Ed.zd 482 Hospital,180F.3d 234,241(5th Cir. 1999). Plaintiff doesnot (1982);seealso Bass Parlo,vood v. allege that defendantgatheredinformation about her or slanderedher at the direction of the police' To the contrary, plaintiff believesthat defendantengagedin suchconduct on his own in an effort to have her arrested. (SeeMag. J. Interrog. #5). That defendantmay have provided information to the police doesnot makehim a "stateactor" for purposes sectionI 983 liability . Daniel v. Ferguson, of 839 F.2d 1124,1130 (5th Cir. 1988) (private citizen who provides information to police is not a "stateactor");seealso Brokaw v. Mercer County,z3sF.3d 1000,1016(7th Cir. 2000) (citing cases holding that private citizen is not liable under section 1983 for reporting crimes to the police or urging the government to prosecutefor criminal offenses). Nor is there any basis for federal diversity jurisdiction. It is apparentfrom the face of the complaint and interrogatory answersthat plaintiff and defendantare citizens of Texas. (SeeMag J. Intenog. #3). Thus,thereis not completediversitybetweenthe parties. SeeOwenEquipment& L.Ed'2d27a 0978) (in 98 ErectionCo. v. Kroser,437 U.S. 365,373-74, S.Ct.2396,2402-03,57 order for a federal court to exercisediversity jurisdiction, the citizenship of all plaintiffs must be different from the citizenship of all defendants)' RECOMMENDATION Plaintiffs complaint should be summarily dismissedwithout prejudice for lack of subject matterjurisdiction.' A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendationmust file with a copy. See28U.S.C. $ 636(bXl); specificwritten objectionswithin 10daysafterbeingserved Fpp. R. Clv. P. 72(b). In order to be specific, an objection must identiff the specific finding or recommendationto which objection is made, statethe basis for the objection, and speciff the place in the magistratejudge's report and recommendationwherethe disputeddeterminationis found. An 1 Even if the court had subjectmatterjurisdiction to hearthis case,it is likely barredby limitations. SeeAIi v. Higgs,gg2 F .2d 438, 439(5th Cir. 1990)(federalcivil rights actionundersection1983governedby two-yearstatute & of limitations); Tex. Crv. PRAC. REM.Cooe ANNr. 16.002(a)(establishingone-yearstatuteof limitations for slander). $ objection that merely incorporatesby referenceor refers to the briefing before the magistratejudge is not specific. Failure to file specific written objectionswill bar the aggrievedparty from appealing judge that are acceptedor adoptedby the the factual findings and legal conclusionsofthe magistrate district court, exceptupon groundsofplain err or. SeeDouglassv. United ServicesAutomobile Ass'n, 7 9 F . 3 d 1 4 1 5 ,1 4 1 7( 5 t hC i r . 1 9 9 6 ) . 22, DATED: September 2009. STATES MAGISTRATE JUDGH

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