United States District Court, S.D. Indiana, Terre Haute Division
CHRISTOPHER C. TYLER, Plaintiff,
JOE KIELUR Dr., Mass. Ave. Chiropractic, UNNAMED EMPLOYEE, Defendants.
ENTRY DISMISSING COMPLAINT AND DIRECTING FURTHER
William T. Lawrence, Judge
plaintiff shall have through January 12,
2018, to pay the $400.00 filing fee for this action
or demonstrate his financial inability to do so.
complaint is subject to the screening requirement of 28
U.S.C. § 1915(e)(2)(B). This statute provides that a
court shall dismiss a case at any time if the court
determines that the action (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is
immune from such relief.
plaintiff claims in this complaint that he was injured by an
employee of Mass. Ave Chiropractic, a private business in
Indianapolis. He sues Dr. Joe Kielur of that business and an
unnamed employee. He also claims that the employee violated
his First Amendment rights by calling him names.
First Amendment claim is understood to have been brought
under 42 U.S.C. § 1983. That statute provides:
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 ....
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). For the
individual defendants to act “under color of state
law” for § 1983 purposes means to “misuse [
] power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law.” Burrell, 378 F.3d at 649 (quoting
Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001).
Because there is no allegation that would allow the Court to
conclude that the unnamed employee acted under color of state
law, the plaintiff cannot state a § 1983 claim based on
these actions. The First Amendment claim is therefore
remaining claims are based on the plaintiff's allegations
that he was injured by the individual defendant's
negligence. But this Court has no jurisdiction to hear these
claims. Cf. Arbaugh v. Y&H Corp., 546 U.S. 500,
514 (2006) (“Courts . . . have an independent
obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any
party.”). The Supreme Court has explained:
The basic statutory grants of federal-court subject-matter
jurisdiction are contained in 28 U.S.C. §§ 1331 and
1332. Section 1331 provides for
“[f]ederal-question” jurisdiction, § 1332
for “[d]iversity of citizenship” jurisdiction. A
plaintiff properly invokes § 1331 jurisdiction when she
pleads a colorable claim “arising under” the
Constitution or laws of the United States. See Bell v.
Hood, 327 U.S. 678, 681-685, 66 S.Ct. 773, 90 L.Ed. 939
(1946). She invokes § 1332 jurisdiction when she
presents a claim between parties of diverse citizenship that
exceeds the required jurisdictional amount, currently $75,
000. See § 1332(a).
Id. at 513 (internal footnote omitted). Further, 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.
aside from the First Amendment claim, which has been
dismissed, 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 plaintiffs
right to relief is created by or depends on a federal statute
or constitutional provision). In addition, there is no
allegation of 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 claim over
which this Court could exercise subject matter jurisdiction