Adams v. Parole

          RECOMMENDATION REGARDING SECOND AMENDED PRISONER COMPLAINT

          GORDON P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the Second Amended Complaint (ECF No. 23) filed pro se by Plaintiff on April 24, 2019. The matter has been referred to this Magistrate Judge for recommendation. See ECF No. 26.^[1] The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Second Amended Complaint be dismissed without prejudice for lack of subject matter jurisdiction.

         I. Factual and Procedural Background

         Plaintiff John Cassidy Adams is currently detained at the Denver County Jail in Denver, Colorado. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in this civil action.

         In response to the Court's orders concerning filing deficiencies, Plaintiff submitted pro se a Prisoner Complaint (ECF No. 7) pursuant to 42 U.S.C. § 1983. The Court reviewed the Prisoner Complaint and determined there were pleading deficiencies that needed to be addressed. Specifically, Plaintiff was instructed to file an amended complaint that complied with Rule 8 of the Federal Rules of Civil Procedure; stated a claim for relief under § 1983; did not assert claims barred by Eleventh Amendment immunity; satisfied the standards for municipal liability; and alleged facts demonstrating each defendant's personal participation in a constitutional violation. See ECF No. 10.

         Plaintiff filed an Amended Prisoner Complaint (ECF No. 12). The Court reviewed the Amended Complaint and found that it did not comply with Rule 8 because Plaintiff failed to state the grounds for the court's jurisdiction, a claim showing that he was entitled to relief, and a demand for the relief sought. See ECF No. 13. The Court further explained that a § 1983 claim must be asserted against a person acting under color of state law; that Defendant Colorado Northeast Adult Parole was protected by Eleventh Amendment immunity; that to sue a municipality, he must show an unconstitutional municipal policy or custom that caused his injuries; that he must provide facts to support a Fourth Amendment excessive force claim; and that claims relating to pending criminal proceedings were subject to Younger abstention. Id.

         Plaintiff filed the Second Amended Complaint (ECF No. 23) on April 24, 2019. In claim one, he asserts that Defendant Northeast Parole committed the torts of assault, libel, slander, and personal injury when Defendant's car deliberately hit the vehicle Plaintiff was in, resulting in injuries to Plaintiff's neck and back. Id. at 3. Plaintiff further alleges in claim two that Defendant EMT administered “versed 5, a Benzo” even though he knew Plaintiff had taken heroin because the medic wanted “to take my life to hush me up.” Id. at 4. He asserts that Defendant EMT also lied in his report by stating that Plaintiff “was driving and running.” Id. In claim three, Plaintiff asserts that Defendant Denver Police Department committed slander and other frauds because a police officer overhead Defendant Northeast Parole state “do not write an incident report on wreck” but did not inform Defendant that it is a crime to attempt to hide evidence in Plaintiff's case. Id. at 5. He seeks injunctive relief and damages. Id. at 7.

         The Court must construe the Second Amended Complaint liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If a complaint reasonably can be read “to state a valid claim on which the plaintiff could prevail, [a court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant's advocate. See Id. “[I]n analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations.” Id.

         It is the Court's duty to assure itself of its subject matter jurisdiction before proceeding with any case. See Citizens Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1297, 1301 (10th Cir. 1980). There are two statutory bases for federal subject matter jurisdiction: federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”); and 28 U.S.C. § 1332 (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000 . . . and is between citizens of different States . . . “). Rule 12 of the Federal Rules of Civil Procedure empowers a court to dismiss a complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1) and (h)(3). Dismissal for lack of jurisdiction is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing that federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Id. at 909; see also McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988) (issue of subject matter may be raised sua sponte by the court at any point in the proceedings). The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).

         II. Analysis

         In Section C. Jurisdiction of the Second Amended Complaint, Plaintiff asserts jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and “Torts 320: Assault, Libel, and Slander”, 362: Personal injury medical malpractice.” ECF No. 23 at 2. He further asserts jurisdiction pursuant to 28 U.S.C. § 1332 (diversity), and alleges that he is a citizen of Colorado and Defendants are incorporated under the laws of the United States with a principal place of business in Colorado. Id.

         Plaintiff fails to allege facts demonstrating that this Court has subject matter jurisdiction over his claims pursuant to either § 1331 or § 1332. The Court lacks diversity jurisdiction over Plaintiff's tort claims because he alleges that all parties are citizens of Colorado or have their principal place of business in Colorado.

         Furthermore, while Plaintiff asserts federal question jurisdiction, he relies on state tort law to assert claims for assault, libel, slander, personal injury, and medical malpractice. “For a case to arise under federal law within the meaning of § 1331, the plaintiff's well-pleaded complaint must establish one of two things: either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1023 (10th Cir. 2012) (internal quotation marks omitted). Plaintiff does not contend anywhere in the Second Amended Complaint that his federal rights have been violated, and he fails to allege any facts that would give rise to a legally cognizable constitutional violation.

         Accordingly, Plaintiff has failed to fulfill his burden in establishing the Court's subject matter jurisdiction over this case. See Basso, 495 F.2d at 909. Plaintiff does not assert any claims that specifically raise a federal question, or provide any facts that arguably might support a federal question claim against the named Defendants. Instead, Plaintiff asserts only state law claims for assault, slander, libel, and ...