Opinion
Civ. No. 10-969 BB/DJS.
October 29, 2010
MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT
THIS MATTER comes before the Court on pro se Plaintiff Justin Daniels' motion seeking authorization to proceed in forma pauperis ("IFP") with this litigation, i.e., without prepaying costs or filing fees. See Doc. 2, filed October 12, 2010. When determining whether to grant permission to proceed IFP, the Court must "review the affidavit and screen [Daniels'] case under 28 U.S.C. §§ 1915(a) and (e)." Lister v. Dep't of Treasury, 408 F.3d 1309, 1311 (10th Cir. 2005). Screening the case under § 1915(e) includes determining whether "the allegation of poverty is untrue" as well as determining whether the action "is frivolous or malicious, . . . fails to state a claim on which relief may be granted; or [] seeks monetary relief against a defendant who is immune from such relief." § 1915(e). "[I]n order to succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised in the action." Lister, 408 F.3d at 1312. If the Court determines that "the allegation of poverty is untrue," or that a complaint filed without the prepayment of filing fees fails to state a claim or names a defendant who is immune from suit, it must dismiss the case. See § 1915(e)(2)(A), (B); Trujillo v. Williams, 465 F.3d 1210, 1217 n. 5 (10th Cir. 2006) (noting that dismissal of complaints under § 1915(e) is now mandatory).
Regarding the ability-to-pay prong of the IFP analysis, IFP status should be granted only if a plaintiff demonstrates that he "cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. DuPont de Nemours Co., 335 U.S. 331, 339 (1948).
Daniels, who is 27 years old and has no dependents, receives disability payments of $816/month. See Doc. 2 at 2. Although an attachment to Daniels' Complaint indicates that he may live with a family member, see Doc. 1, Att. 3 (EEOC letter mailed to Justin Daniels, "C/O Mr. Vince Daniels" at the same address Justin Daniels provides on his motion to proceed IFP), he states that he pays $400/month for rent and pays no utilities, see Doc. 2 at 4. And although the current national monthly average "thrifty food plan" costs for a male in Daniels' age group is about $200, Daniels claims that he spends $400/month on food. See id. He lists no other debts or expenses of any kind. The Court need not hold a hearing to determine the veracity of Daniels' alleged expenses because, as discussed below, Daniels' Complaint must be dismissed for lack of subject-matter jurisdiction.
See Official USDA Food Plans, Average for August 2010, located at http://www.cnpp.usda.gov.
Using a standard, fill-in-the-blank form complaint for actions brought under 42 U.S.C. § 1983, Daniels is suing an unidentified 7-11 Convenience Store in Albuquerque, New Mexico. See Complaint at 1. Daniels checked the "no" box in response to the question whether the Defendant acted under color of state law. See id. The Complaint is devoid of factual allegations. Instead, Daniels makes a single, conclusory statement: "got discrimtation [sic] for being retared [sic] to worked [sic]." Id. at 2.
"Federal courts are courts of limited jurisdiction, and the presumption is that they lack jurisdiction unless and until a plaintiff pleads sufficient facts to establish it." Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994). "[T]he party pleading jurisdiction must allege in his pleading the facts essential to show jurisdiction." Id. (internal quotation marks omitted). Daniels has alleged no facts showing that "some person has deprived him of a federally protected right" and "that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640 (1980). Daniels has, therefore, failed to allege sufficient facts to invoke the Court's subject-matter jurisdiction over, or to state a claim under, § 1983. See Monks v. Hetherington, 573 F.2d 1164, 1167 (10th Cir. 1978) (noting that, when "[t]here is no demonstration of state action [there is,] no basis for civil rights jurisdiction" under § 1983"); Blythe v. Southwest Airlines Co., No. 10-2047, 2010 WL 2473863, *2 (10th Cir. June 18, 2010) (affirming district-court's conclusion that, because the complaint included no allegation that the defendant acted "under color of state law," it "failed to state a federal claim or invoke federal subject-matter jurisdiction as a § 1983 action"); Elliott v. Chrysler Fin., No. 05-2073, 149 F. App'x 766, 768-69, 2005 WL 2114181, **1-2 (10th Cir. Sept. 2, 2005) (noting that, "[t]o establish subject matter jurisdiction under § 1343, the plaintiff must show that the defendant acted `under color of any state law'" and that, if § 1331 could otherwise provide subject-matter jurisdiction, a "complaint fails to state a [§ 1983] claim upon which relief can be granted [when] it fails to establish state action"). Because Daniels has failed to allege any facts demonstrating this Court's subject-matter jurisdiction, the Court must dismiss his Complaint without prejudice. 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.").
Daniels attached to his Complaint a copy of his request to the EEOC for a right-to-sue letter and a copy of the EEOC's letter notifying him of his right to sue, but nothing indicates the basis of his EEOC charge. If Daniels decides to file a sufficient motion to proceed IFP (or pays the filing fees) and submits an amended complaint for violation of a federal statute like Title VII of the Civil Rights Act of 1964, he should specify the dates the alleged events and injury occurred, exactly what happened, and who was involved. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) ("a district court might helpfully advise a pro se litigant that, to state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated").
IT IS ORDERED that Daniels' Motion to Proceed IFP [Doc. 2] is DENIED and his case is DISMISSED without prejudice.