United States District Court, D. Kansas
TYRECE L. EDWARDS, Plaintiff,
LAWRENCE G. MICHEL, et al., Defendants.
REPORT AND RECOMMENDATION
P. O'HARA U.S. MAGISTRATE JUDGE
se plaintiff, Tyrece L. Edwards, filed this lawsuit to assert
legal malpractice claims against defendants (ECF No. 1). The
court granted plaintiff's motion to proceed with this
action in forma pauperis and denied the motion for
appointment of counsel (ECF No. 5), but required plaintiff to
show cause why this case should not be dismissed for lack of
subject-matter jurisdiction. Based on plaintiff's
response to the show cause order (ECF No. 7), the undersigned
U.S. Magistrate Judge, James P. O'Hara, respectfully
recommends that the case be dismissed.
28 U.S.C. § 1915 (e)(2)(B)(ii), the court shall dismiss
a case at any time if the court determines the action fails
to state a claim on which relief may be granted. Courts have
held that the screening procedure set out in §
1915(e)(2) applies to all litigants proceeding in forma
pauperis. Federal courts are of limited jurisdiction
and must have a statutory basis for their
jurisdiction. Therefore, “[i]f the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the
complaint asserts claims against defendants for breaching the
attorney-client contract, breaching the duty of care owed to
plaintiff, and negligence. As discussed in the court's
order granting leaving to proceed in forma pauperis and order
to show cause (ECF No. 5), the complaint inadequately asserts
federal court jurisdiction. Plaintiff checked the box for
jurisdiction under 28 U.S.C. § 1343 but did not allege
any additional facts to link the alleged events to a
protected federal civil right. Plaintiff also checked the box
asserting federal court jurisdiction on the basis of
diversity of citizenship under 28 U.S.C. § 1332. Yet
plaintiff states that he and defendants are citizens of the
same state, Kansas, so diversity of citizenship has not been
order to show cause required plaintiff to establish
subject-matter jurisdiction to prevent dismissal. Plaintiff
faxed a response asserting that he was unable to locate the
answer to the jurisdictional question, but that the case from
which the malpractice claims arose was a federal action and,
accordingly, some of the documents and transcripts from that
case are located in the federal system. Additionally, for
the first time, plaintiff now alleges that his case arises
from 28 U.S.C. § 1331 because of a 14th Amendment
violation, though he does not allege any facts related to the
elements of a due process claim.
response does not adequately establish subject-matter
jurisdiction in this case. 28 U.S.C. § 1331 grants the
federal courts diversity jurisdiction based on a federal
question. Yet plaintiff has not raised any federal question
in this lawsuit, beyond merely using the term “due
process of law” in his response without alleging any
supporting facts. Plaintiff fails to show that this court has
diversity jurisdiction or jurisdiction under 28 U.S.C. §
1343. Because plaintiff has not alleged any additional facts
that establish federal court jurisdiction, the federal court
is not the proper forum for this state court claim.
THEREFORE RECOMMENDED that plaintiff's complaint be
dismissed for lack of subject-matter jurisdiction under
is hereby informed that, within 14 days after he is served
with a copy of this order, he may, pursuant to 28 U.S.C.
§ 636(b)(1) and Fed.R.Civ.P. 72, file written objections
to the order. Plaintiff must file any objections within the
14-day period allowed if he wants to have appellate review of
the proposed findings of fact, conclusions of law, or the
recommended disposition. If no objections are timely filed,
no appellate review will be allowed by any court.
 King v. Huffman, No.
10-4152-JAR, 2010 WL 5463061, at *1 (D. Kan. Dec. 29,
See Perry v. Cowley County Cmty.
Coll., No. 13-1425-JTM, 2013 WL 6804185, at *1 (D. Kan.
Dec. 23, 2013) (discussing the two statutory bases for
federal subject-matter jurisdiction: federal jurisdiction
under 28 U.S.C. § 1331 and diversity jurisdiction under
28 U.S.C. § 1332) (citing Nicode ...