United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISMISSING AMENDED COMPLAINT FOR LACK OF
Jane Magnus-Stinson, Chief Judge
plaintiff's request to proceed in forma pauperis
[dkt. 6] is granted. The assessment of even a partial filing
fee is not feasible at this time. Notwithstanding the
foregoing ruling, the plaintiff owes the filing fee.
“All [28 U.S.C.] § 1915 has ever done is excuse
pre-payment of the docket fees; a litigant remains
liable for them, and for other costs, although poverty may
make collection impossible.” Abdul-Wadood v.
Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).
Timothy Bristol is an inmate at the Putnamville Correctional
Facility, in Greencastle, Indiana. He has sued Kalay Colley
Johnson, the Chief Probation Officer for Montgomery County
Indiana and Kelly Trusty, Associate Professor of the School
of Public Affairs & Administration at Western Michigan
University. Bristol alleges that the defendants are liable to
him for defamation by producing a document called, “The
Rise and Fall of the Great and Powerful Nonprofit
Director.” Bristol asks this Court to halt the
publication and distribution of this written work. He also
seeks $100, 000.00 in money damages for defamation.
to esoteric exceptions not implicated by the circumstances of
this case, “[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.
the original complaint, there is no allegation of conduct in
the amended complaint 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). Defamation is a state law claim. Bristol also
references the First and Eighth Amendments and the Equal
Protection Clause, but no plausible violation of these
constitutional rights has been alleged. Section 1983
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects, or
causes to be subjected, any citizen of the United States ...
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress ....
42 U.S.C. § 1983. The two key elements establishing a
violation of § 1983 are (1) a deprivation of a federally
guaranteed right, (2) perpetrated under color of state law.
Burrell v. City of Mattoon, 378 F.3d 642, 646 -647
(7th Cir. 2004).
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 basis to conclude that the individual authors
were acting under color of state law when they drafted the
manuscript at issue.
the facts do not suggest that the plaintiff's rights
under the First or Eighth Amendments or the Equal Protection
Clause have been violated. The plaintiff alleges that the
defendants violated his rights by attempting to strong arm
him into signing paperwork that would verify and endorse a
case study which the plaintiff states is fictional and filed
with inaccuracies. Attached to the complaint is a letter from
defendant Kelly Trusty, Ph.D., in which she states that she
and Kalay Colley have drafted a case study derived from
secondary sources (i.e., newspaper articles, news reports,
court documents, law enforcement incident reports and
organizational documents) and that as a best practice the
plaintiff has the opportunity to review the draft and provide
confirmation of the accuracy of the passages related to him
and his actions. The plaintiff is under no obligation to
respond to this letter. Neither the case study, nor the
letter requesting confirmation of the events in question
impedes on the plaintiff's constitutional rights.
addition, there is no allegation which would support the
exercise of the court's diversity jurisdiction as to any
claim under Indiana state law. This is because a district
court cannot exercise diversity jurisdiction if the plaintiff
shares the same state citizenship as any one of the
defendants. Here plaintiff and Defendant Johnson both are
citizens of Indiana. Whalen v. Carter, 954 F.2d
1087, 1094 (5th Cir. 1992) (citing Strawbridge v.
Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806));
see also Hart v. FedEx Ground Package Sys. Inc., 457
F.3d 675, 676 (7th Cir. 2006).
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 amended complaint (like the original ...