United States District Court, D. Kansas
JONATHAN C. KING, Plaintiff,
LARRY G. MICHEL, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
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
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.
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.
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.
reasons explained below, plaintiff's filings still fail
to establish any basis for federal subject matter
jurisdiction. The court thus dismisses the case without
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).
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)).
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).
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.
28 U.S.C. § 1331 Federal ...