GAY v. UNLEVER TRUMBULL, C.T., No. 3:2011cv05929 - Document 5 (D.N.J. 2013)
Court Description: OPINION filed. Signed by Judge Peter G. Sheridan on 5/28/2013. (eaj)
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MAURICE GAY, Civil Action No. 11-5929 (PGS) Plaintiff, OPINION V. UNLEVER TRUMBULL, C. T., Defendant. APPEARANCES: se Plaintiffs Maurice Gay Trenton State Prison P.O. Box 861 Trenton, NJ 08625 SHERIDAN, District Judge Plaintiff Maurice Gay, Prison in Trenton, a prisoner confined at Trenton State New Jersey, pauperis pursuant to 42 U.S.C. seek to bring this action in forma § 1983, alleging violations of his constitutional rights. This matter was previously administratively terminated for Plaintiff s failure either to prepay the filing fee or to submit Plaintiff an application for leave to proceed in forma pauperis. has cured these defects by submitting an application for leave to proceed in forma pauperis. Based on the affidavit of indigence, and the absence of three disqualifying dismissals within 28 U.S.C. § 1915(g), the Court will order the Clerk of the Court to re-open this action, will grant the application for leave to proceed in forma pauperis, and will order the Clerk of the Court to file the Complaint. At this time, the Court must review the Complaint to determine whether it should be dismissed as frivolous or malicious, granted, for failure to state a claim upon which relief may be or because it seeks monetary relief from a defendant who is immune from such relief, or for any other reason under applicable statutes and rules. I. BACKGROUND The following factual allegations are taken from Plaintiff s Complaint and are accepted as true for purposes of this review. 2 Plaintiff alleges that Defendant Unlever Trumbull C.T. distributed bad soap which caused him skin problems. Plaintiff seeks monetary damages in the total amount of $30,000.00. ANALYSIS II. Federal Rule of Civil Procedure 8(a) requires the plaintiff in a federal action to set forth a short and plain statement of the grounds upon which the court s jurisdiction depends. Federal courts are bound to determine whether they have jurisdiction even if none of the parties to an action have challenged the asserted bases theref or. National Bank, 994 F. 2d 1039 v. Mellon Bank, N.A., 941 F.2d 201 (3d Cir. (3d Cir.), 510 U.S. 1991), 964 Packard v. Provident cert. denied sub nom. (1993); Temple Univ. v. White, cert. denied sub nom. Snider v. The Court construes this as a claim against Unilever, with an alleged location in Trumbull, Connecticut. 2 2 Temple Univ., 502 U.S. Anticiues Assocs., a plaintiff, pleading, 1032 L.P., (1992); TM Marketing, 803 F. Supp. affirmatively and distinctly, 1992). Indeed, the existence of whatever and, if he does not do so, must dismiss the case, unless the defect be ... corrected by amendment. (1926). (D.N.J. suing in a federal court, must show in his is essential to federal jurisdiction, the court 994 Inc. v. Art & Smith v. McCullough, 270 U.S. 456, 459 A court can take no measures to rectify a want of jurisdiction, because the lack of jurisdiction itself precludes asserting judicial power. See First American Nat l Bank v. Straight Creek Processing Co., 756 F. Supp. (where diversity of parties is incomplete, 945 (E.D. Va. 1991) court has no jurisdiction to consider plaintiff s motion to dismiss nondiverse defendants; jurisdiction). rather, court must dismiss action for lack of As explained more fully below, this Complaint does not meet the requirements either for federal-question jurisdiction under 28 U.S.C. under 28 U.S.C. A. 28 U.S.C. § 1331 or for diversity jurisdiction § 1332. § 1331 Pursuant to 28 U.S.C. § 1331, Congress has established jurisdiction in the federal district courts over all civil actions arising under the Constitution, United States. under 42 U.S.C. laws, or treaties of the Although Plaintiff asserts that his claim arises § 1983, thus invoking § 1331 federal-question 3 jurisdiction, the facts pleaded reveal no claim arising under § 1983. More specifically, Section 1983 provides in relevant part: 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, allege, first, a plaintiff must 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, (1988); Piecknick v. 1994). The basis of Plaintiff s action, Pennsylvania, defendant distributed bad soap. 487 U.S. 36 F.3d 1250, 42, 1255-56 however, 48 (3d Cir. is that the This does not state a claim for a violation of a right secured by the Constitution or law of the United States. In addition, the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, discriminatory or wrongful. Sullivan, 526 U.S. Nevertheless, 40, 50 no matter how American Mfrs. Mut. (1999) Ins. Co. v. (citations omitted) the deed of an ostensibly private organization or individual at times may demand to be treated as if a State has 4 Brentwood Academy v. Tennessee caused it to be performed. Specifically, (2001) 288 531 U.S. Secondary Sch. Athletic Ass n, though only if, state action may be found if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as (quoting Jackson v. Metropolitan that of the State itself. 419 U.S. Edison Co., 345, 351 (1974)). The under color of state law requirement of 42 U. . C. § 1983 has been treated identically to the state action Mark v. Borough of requirement of the Fourteenth Amendment. 51 F.3d 1137, Hatboro, 858 (1995) (1966); 1141 (3d Cir. (citing United States v. Luciar v. Edrnondson Oil Co., Rendell-Baker v. Kohn, 457 U.S. cert. 1995), Price, 383 U.S. 457 U.S. 830, 838 denied 516 U.S. 922, (1982)). 787, 928 794 n.7 (1982); State action exists under § 1983 only when it can be said that the government is responsible for the specific conduct of which a plaintiff Mark, complains. 51 F.3d at 1141-42. Put differently, deciding whether there has been state action requires an inquiry into whether there is a sufficiently close nexus between the State and the challenged action of [the defendants] so that the action of the latter may fairly be treated as that of the State itself. 1004 Id. at 1142 (quoting Blum v. Yaretsky, (1982) ) 5 457 U.S. 991, A private entity can be sued under § 1983 where it has (1) exercised powers that are traditionally the exclusive prerogative 51 F.3d at 1142 of the State, Mark, the (2) (citation omitted); State and the private party have acted in concert or jointly to deprive a plaintiff of his rights, 398 U.S. 144, 170-171 (1970); (3) Adickes v. S.H. Kress & Co., the State has permitted a private party to substitute his judgment for that of the State, 81-82 727 F.2d 79, Cruz v. Donnelly, (3d Cir. 1984); or (4) the private party and the State have a symbiotic relationship as joint participants in the unconstitutional activity, Leesville Concrete Co., 614, 500 U.S. Inc., 620 Edinonson v. (1991); Mark, of See also DeShaney v. Winnebago County Dept. F.3d at 1143. 489 U.S. Social Services, (1989) 189 51 (Fourteenth Amendment s purpose was to protect the people from the State, not to ensure that the State protected them from each other ); Van Ort v. Estate of Stanewich, ( Individuals . . . 92 F.3d 831, 835 (9th Cir. have no right to be free from infliction of [constitutional] harm by private actors ), U.S. (E.D. 1111 Pa. (1997); Jones v. Arbor, 1993) 1996) Inc., , 519 205, 208 cert. denied 820 F. Supp. (plaintiff did not allege that defendant corporation was a state actor or had such a symbiotic relationship with the state so as effectively to be an instrumentality of the state) . Here, Plaintiff alleges no facts that would permit this Court to find that Defendant Unlever, 6 C.T., Trumbull, acted under color of state law within the meaning of § 1983 when it distributed soap. the facts as alleged do not support this Court in Thus, exercising jurisdiction over this action under § 1331. 13. 28 U.S.C. § 1332 Although Plaintiff does not allege jurisdiction based upon diversity of citizenship under 28 U.S.C. § 1332; this Court will consider whether it can exercise jurisdiction under that provision. Section 1332 can provide jurisdiction over state-law civil actions if, in the provision pertinent here, the matter in controversy exceeds the sum or value of $75,000, interest and costs, States. i.e., to found jurisdiction there must be complete diversity among all parties, each plaintiff must be a citizen of a different state from each defendant. U.S. and is between citizens of different It has long been recognized that, upon § 1332, exclusive of 365 Owen Ecuipment and Erection Co. v. Krocier, 437 (1978) A plaintiff, as the party asserting federal jurisdiction, must specifically allegeeach party s citizenship 1 and these allegations must show that the plaintiff and defendant are citizens of different states. American Employers Ins. Co., American Motorists Ins. 600 F.2d 15, see also Universal Reinsurance Co., 7 Ltd. v. 16 (5th Cir. St. Co. v. 1979); Paul Fire & Marine Ins. to allege Co., 224 F.3d 139, [the party s] 141 (2d Cir. 2000) ( The failure Citizenship in a particular state is fatal to diversity jurisdiction ). Here, however, Plaintiff alleges no facts that would permit this Court to determine either his citizenship or the Citizenship of the defendant. A corporation is deemed to be a citizen of any State by which it has been incorporated and of the State where it has its Plaintiff has listed a Connecticut location for the Defendant, he has failed to allege either that the Defendant is incorporated in Connecticut, and not in New Jersey, or that it has its principal place of business in Connecticut. Specifically with respect to individuals, in addition, For purposes of determining diversity, state citizenship is equated with domicile. Domicile, however, is not necessarily synonymous with residence; one can reside in one place and be domiciled in another. Residence and an intent to make the place of residence one s home are required for citizenship and to establish a new domicile. Although the analysis is essarily case specific, courts have looked to nec certain factors, including state of employment, voting, taxes, driver s license, bank accounts and assets, and civic and religious associations in determining the citizenship of an individual McCracken v. Murphy, 328 F.Supp.2d 530, (citations omitted), ff d, For iates, 532 129 Fed.Appx. (E.D. 701 Pa. (3d Cir. 2004) 2005). citizenship for diversity purposes is the state in which the iate was domiciled prior to incarceration, unless the iate plans to live elsewhere when he is released in which event 8 citizenship would be that state. 532 (citing Flanagan v. aff d, 980 F.2d 722 783 F.Supp. Shively, (3d Cir. McCracken, 1992)) . facts regarding his own citizenship. in New Jersey is not sufficient, 328 F.Supp.2d at 922, 935 (E.D. Pa.), Plaintiff has alleged no The fact of incarceration of itself, to establish citizenship in New Jersey. Finally, Plaintiff alleges damages in the amount of $30,000, substantially below the jurisdictional threshold of $75,000. all the foregoing reasons, For diversity jurisdiction is lacking. The Court is mindful that Plaintiff appears here p and therefore the complaint is to be held to less stringent standards than formal pleadings drafted by lawyers. U.S. 519 (1972). Nonetheless, Haines v. Kerner, 404 the Court can discern no basis for asserting jurisdiction over this action. V. CONCLUSION For the reasons set forth above, the Complaint will be dismissed without prejudice for lack of jurisdiction. 3 It does The Court notes that [g]enerally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action. The dispositive inquiry is whether the district court s order finally resolved the case. Martin v. Brown, 63 F.3d 1252, 1257-58 (3d Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976)) (other citations omitted) In this case, if Plaintiff can correct the deficiencies of his Complaint, he may file a motion to re-open these claims in accordance with the court rules. . 9 not appear that Plaintiff could amend the Complaint to establish jurisdiction. An appropriate Order follows. Peter G. Sheridan United States District Judge Dated: 10
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