United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISMISSING AMENDED COMPLAINT
William T. Lawrence, Judge
Charles Trayzon Gilbert filed this civil action against
iUniverse, Inc. (“iUniverse”). Mr. Gilbert is a
prisoner of the State of California and iUniverse is a
self-publishing company located in Bloomington, Indiana. See
http://www.iuniverse.com/AboutUs.aspx. The Entry of
December 21, 2016, dismissed the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B) and gave the plaintiff the
opportunity to file an amended complaint.
plaintiff filed an amended complaint on January 23, 2017. The
amended complaint alleges that the plaintiff wrote a
manuscript containing autobiographical accounts that was
stolen and published by iUniverse. Included in the book is a
photograph of the plaintiff which was taken while he was
incarcerated. The plaintiff alleges that publication of this
information was an invasion of privacyand defamatory. The
plaintiff faults iUniverse for not verifying the consent form
plaintiff states that the publication of his manuscript
violated his civil rights and the United States Constitution.
Despite this statement, no viable civil rights or
constitutional claim has been alleged against the defendant
company. To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege the violation of a right secured by the
Constitution or laws of the United States and must show that
the alleged deprivation was committed by a person acting
under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988). “The color of state law element is a
threshold issue; there is no liability under [Section] 1983
for those not acting under color of law.” Groman v.
Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). A
person acts under color of state law only when exercising
power “possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.” United States v.
Classic, 313 U.S. 299, 326 (1941). There is no plausible
basis to conclude that iUniverse was acting under color of
state law when it published the plaintiff's manuscript.
a viable claim, this court lacks federal question
jurisdiction over this action. “A federal court may
exercise jurisdiction where: 1) the requirements for
diversity jurisdiction set forth in 28 U.S.C. § 1332 are
met; or 2) the matter arises under the Constitution, laws, or
treaties of the United States as provided in 28 U.S.C. §
1331.” Barringer-Willis v. Healthsource North
Carolina, 14 F.Supp.2d 780, 781 (E.D. N.C. 1998).
“'A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.'”
Home Builders Ass'n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d
1182, 1187 (2d Cir. 1996)). The Court of Appeals has
repeatedly held that “the party invoking federal
jurisdiction bears the burden of demonstrating its
existence.” See Hart v. FedEx Ground Pkg. Sys.
Inc., 457 F.3d 675, 679 (7th Cir. 2006).
there is no allegation of conduct which could support the
existence of federal question jurisdiction. See Williams
v. Aztar Ind. Gaming Corp., 351 F.3d 294, 298 (7th Cir.
2003)(explaining federal courts may exercise federal-question
jurisdiction when a plaintiff's right to relief is
created by or depends on a federal statute or constitutional
provision). Similarly, the complaint does not purport to seek
jurisdiction over any state law claims based on diversity of
citizenship. See Denlinger v. Brennan, 87 F.3d 214,
217 (7th Cir. 1996) (holding that failure to include
allegations of citizenship requires dismissal of complaint
based on diversity jurisdiction).
is determined that a court lacks jurisdiction, its only
course of action is to announce that fact and dismiss the
case. Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94
(1998)(“'Jurisdiction is power to declare the law,
and when it ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing the
cause.'”)(quoting Ex parte
McCardle, 7 Wall, 506, 514, 19 L.Ed. 264 (1868)). That
is the case here. The complaint fails to contain a legally
viable federal claim over which this Court could exercise
subject matter jurisdiction and the complaint is dismissed
for lack of jurisdiction.
plaintiff shall have through March 15, 2017, in which to show
cause why Judgment consistent with this Entry should not
issue. See Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014, 1022 (7th Cir. 2013) (“Without at least an
opportunity to amend or to respond to an order to show cause,
an IFP applicant's case could be tossed out of court
without giving the applicant any ...