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King v. Michel

United States District Court, D. Kansas

October 9, 2019

JONATHAN C. KING, Plaintiff,
v.
LARRY G. MICHEL, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge.

         After providing plaintiff several opportunities to allege federal subject matter jurisdiction properly, he still fails to assert any facts establishing that this court has jurisdiction over this lawsuit. The court thus dismisses this case without prejudice for lack of subject matter jurisdiction.

         I. Background

         On August 26, 2016, Mr. Jonathan C. King filed a lawsuit against his former employer, the Rib Crib BBQ Inc. Doc. 10 at 7. Mr. King's allegations included racial discrimination and retaliation under Title VII of the Civil Rights Act. Id. at 15. Larry G. Michel of Kennedy Berkley Yarnevich & Williamson Chartered was Mr. King's counsel in that case. Id. The case was voluntarily dismissed on December 14, 2017, after Mr. King reached a settlement agreement with the Rib Crib. Id. at 2, 4.

         On June 5, 2019, plaintiff filed a pro se Complaint naming his former attorney Larry G. Michel and Kennedy Berkley Yarnevich & Williamson Chartered as defendants. Doc. 1 at 1. Mr. King's allegations against his former counsel include civil rights violations as well as allegations that the defendant “owed a duty to provide competent and skillful representation” and that the defendant breached that duty by “acting carelessly and making numerous mistakes.” Id. at 3.

         On June 10, 2019, Judge Teresa James granted Mr. King's motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915(1)(1). Doc. 4 at 1. In her Order granting the motion, however, Judge James noted the deficiencies in Mr. King's Complaint. She thus ordered Mr. King to show good cause by June 26, 2019, why the court should not dismiss the lawsuit for failure to state a claim upon which relief may be granted and lack of subject matter jurisdiction. Id. Plaintiff filed a response to the court's show cause order (Doc. 5) and a supplement (Doc. 10). But the court cannot find anything in these documents that provides a basis for federal subject matter jurisdiction.

         For reasons explained below, plaintiff's filings still fail to establish any basis for federal subject matter jurisdiction. The court thus dismisses the case without prejudice.

         II. Legal Standard

         Because plaintiff was granted leave to proceed without prepayment of the filing fee under 28 U.S.C. § 1915(a)(1), his Complaint is subject to screening under 28 U.S.C. § 1915(e)(2)(B)(ii). This screening requires that the court dismiss the complaint if it fails to state a claim upon which relief may be granted. The standard of review for § 1915(e)(2)(B)(ii) dismissals is the same standard applied to Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failing to state a claim. Schwartz v. N.M. Corr. Dep't Prob. & Parole, 384 F. App'x. 726, 729 (10th Cir. 2010).

         Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include a “short and plain statement . . . showing that the pleader is entitled to relief[.]” The plaintiff must provide the “grounds of his entitlement to relief, ” which requires more than mere conclusory statements; a “formulaic recitation” of the elements of a cause of action is insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). The court must find that the actual allegations presented in a complaint are enough to “raise a right to relief above the speculative level.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citing Twombly, 550 U.S. at 555 (2007)).

         III. Analysis

         Two federal statutes confer subject matter jurisdiction on federal district courts: federal question jurisdiction under 28 U.S.C. § 1331, and diversity jurisdiction under 28 U.S.C. § 1332. The court has an independent obligation to satisfy itself that subject matter jurisdiction is proper. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). And, it “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Penteco Corp. Ltd. P'ship v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991) (emphasis in original); see also 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.”). When a dispute over a federal court's subject matter jurisdiction is raised, the plaintiff has the burden of demonstrating that jurisdiction is proper. Kansas v. SourceAmerica, 874 F.3d 1226, 1240 (10th Cir. 2017).

         The court recognizes that plaintiff proceeds pro se in this lawsuit. Thus, the court must construe his filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”). If a pro se plaintiff has alleged facts almost stating a cognizable claim but is lacking an “important element that may not have occurred to him, [he] should be allowed to amend his complaint.” Id. (internal citations omitted). But, this does not relieve the plaintiff of his burden to demonstrate a legally cognizable cause of action. Id. Even under the most liberal construction, Mr. King's pleadings supply no basis for subject matter jurisdiction under either federal statute.

         A. 28 U.S.C. ยง 1331 Federal ...


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