United States District Court, D. Kansas
JONATHAN C. KING, Plaintiff,
v.
LARRY G. MICHEL, et al., Defendants.
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND ORDER TO SHOW CAUSE
Teresa
J. James U.S. Magistrate Judge.
TO
THE PLAINTIFF:
Plaintiff
commenced this action pro se on June 5, 2019, by filing a
Complaint (ECF No. 1) naming the Larry G. Michel and Kennedy
Berkley Yarnevich & Williamson Chartered as Defendants.
Plaintiff has filed a Motion to Proceed Without Prepayment of
Fees (ECF No. 3) with an attached affidavit of financial
status. The affidavit shows that Plaintiff is unemployed,
supports three minor children, and he and his wife own no
real property or automobiles. He reports no savings or cash
on hand, and his monthly expenses are nearly $1, 400. Based
on the submitted affidavit, the Court grants Plaintiff leave
to proceed without prepayment of the filing fee pursuant to
28 U.S.C. § 1915(a)(1). As a result, his complaint is
subject to screening under 28 U.S.C. §
1915(e)(2)(B)(ii), which requires the Court to dismiss the
case if it fails to state a claim on which relief may be
granted.
Although
Plaintiff is granted leave to proceed without prepayment of
the filing fee, service of process may be withheld pending
review under 28 U.S.C. § 1915(e)(2)(B).[1] While such review
may occur at any time and the Court is not obligated to
conduct the review before service of process, [2] dismissals
“are often made sua sponte prior to the issuance of
process, so as to spare prospective defendants the
inconvenience and expense of answering.”[3]
Fed. R.
Civ. P. 8(a)(2) requires that a complaint provide a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Additionally, the
complaint must state more than “labels and
conclusions” and “[f]actual allegations must be
enough to raise a right to relief above the speculative
level.”[4] Because Plaintiff proceeds pro se, his
pleadings are liberally construed.[5] Liberal construction,
however, “does not relieve the plaintiff of the burden
of alleging sufficient facts on which a recognized legal
claim could be based.”[6]
Plaintiff
claims this court has jurisdiction over his claims on the
basis of diversity of citizenship, civil rights violation,
and conflict of interest and neglect. In the statement of his
claim, Plaintiff alleges that Defendant Michel acted as his
attorney and owed Plaintiff a duty to provide competent and
skillful representation. Plaintiff further alleges Defendant
breached that duty by acting carelessly and by making
mistakes.
Other
than checking the box on the complaint form indicating that
federal court jurisdiction is founded on the basis of an
alleged civil rights violation, Plaintiff makes no mention of
civil rights. Plaintiff's complaint does not allege how
his civil rights were violated, nor does it articulate what
protected right Defendants allegedly violated. In the absence
of additional facts linking the alleged events to a protected
federal civil right in a way that clarifies Plaintiffs claim,
Plaintiff has not raised a right to relief above the
speculative level.
Plaintiff
also checked the box asserting federal court jurisdiction
exists on the basis of diversity of citizenship. Plaintiff
states that he and Defendants are citizens of the State of
Kansas. Under the federal diversity jurisdiction statute, the
district courts do not have original jurisdiction over a case
where a citizen of a state files suit against another citizen
of that state.[7]Because Plaintiff and Defendants are
citizens of the same state, this court does not have
jurisdiction over Plaintiffs complaint.
IT
IS THEREFORE ORDERED that Plaintiffs Motion to
Proceed Without Prepayment of Fees (ECF No. 3) is hereby
granted, but the Court withholds service of process pending
§ 1915 review following receipt of a response by
Plaintiff to the Order to Show Cause set forth below.
IT
IS FURTHER ORDERED that Plaintiff is hereby required
to show good cause in writing to the Honorable Kathryn H.
Vratil, United States District Judge, on or before
June 26, 2019, why this action
should not be dismissed for failure to state a claim upon
which relief may be granted and lack of subject matter
jurisdiction.
IT
IS SO ORDERED.
---------
Notes:
[1]
See Fuller v. Myers, 123
Fed.Appx. 365, 368 (10th Cir. 2005) (noting that the district
courts may dismiss an action without service of process
through the ...