Opinion
3:02-CV-2295-H
November 7, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights action brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently confined at the Jester I Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Richmond, Texas. Defendants are KDI Facility Services (KDI), KDI Manager Ron Retherford, the Cenikor Foundation (Cenikor), Cenikor Senior Operations Manager Alice Petrasek, and Cenikor President Edward Eresquez. The court has not issued process in this case.
Statement of Case: The complaint alleges that on October 22 or 23, 2000, Plaintiff sustained an on-the-job injury at KDI, where he was working while participating in a residential treatment program at Cenikor. He requests compensatory damages for his physical pain and mental suffering.
Findings and Conclusions: Before addressing the complaint, the court must first examine the threshold question of whether it has subject matter jurisdiction. That is an issue of paramount concern, and should be addressed, sua sponte if necessary, at the inception of any federal action. System Pipe Supply Inc. v. M/V Viktor Kurnatovsky, 242 F.3d 322, 324 (5th Cir. 2001); Moody v. Empire Life Ins. v. 849 F.2d 902, 904 (5th Cir. 1988). Unless otherwise provided by statute, federal court jurisdiction requires (1) a federal question arising under the Constitution, a federal law or a treaty, see 28 U.S.C. § 1331, or (2) complete diversity of citizenship between adverse parties and at least $75,000 in controversy, see 28 U.S.C. § 1332.
Plaintiff filed his complaint on the form to be used by prisoners in filing civil rights actions pursuant to 42 U.S.C. § 1983.
The complaint relates to an on-the-job injury at KDI, and to Cenikor's rules which required Plaintiff to volunteer for fund raisers, even after a full day of work. Neither claim implicates any federal statutory or constitutional rights. Moreover, insofar as he relies on 42 U.S.C. § 1983, he has not alleged a deprivation under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (a plaintiff must allege two elements to raise a claim under § 1983: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by the defendant acting under color of state law). Assuming that Plaintiffs injury was sustained as a result of negligence on the part of KDI and/or Rutherford, it is well established that negligent conduct does not implicate § 1983. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). Further neither KDI (a private contractor) nor Cenikor (a section 501(c)(3) non-profit organization which provides free residential treatment, education and prevention for men and women who have serious substance abuse problems) appears to be a state actor within the purview of § 1983.
Insofar as Plaintiff seeks to rely on diversity of jurisdiction, his claim fares no better. It is clear from the face of the complaint that Plaintiff and the Defendants are citizens of the State of Texas.
RECOMMENDATION:
For the foregoing reasons, it is recommended that this action be dismissed for want of jurisdiction pursuant to Rule 12(b), of the Federal Rules of Civil Procedure.
A copy of this recommendation will be mailed to Plaintiff.