United States District Court, D. Colorado
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 ...