Daugherty v. McCloskey

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MIA MICHELLE DAUGHERTY, )

)

Plaintiff, )

)

v. ) No. 4:23-CV-00609-NCC

)

MARK MCCLOSKEY and )

PATRICIA MCCLOSKEY, )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Mia Michelle Daugherty for

leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2).

Having reviewed the motion, the Court finds that it should be granted. See 28 U.S.C. § 1915(a)(1).

Additionally, for the reasons discussed below, the Court will direct plaintiff to show cause as to

why this case should not be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P.

12(h)(3).

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

avoid dismissal, a plaintiff must demonstrate a plausible claim for relief, which is more than a

“mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must give it

the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal

construction” means that if the essence of an allegation is discernible, the district court should

construe the plaintiff’s complaint in a way that permits his or her claim to be considered within

the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even

pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of

law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d

912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to “assume facts that are

not alleged, just because an additional factual allegation would have formed a stronger

complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not

mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes

by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff is a self-represented litigant who brings this civil action against Mark and Patricia

McCloskey. She asserts that the Court has federal question jurisdiction under RSMo § 571.030,

and because the federal court and the St. Louis Metropolitan Police are involved. (Docket No. 1 at

4). Plaintiff has also filled out the section of the form complaint suggesting that diversity

jurisdiction is present, but admits that both she and defendants are Missouri citizens. (Docket No.

1 at 4-5). The complaint contains allegations that defendants pointed guns at plaintiff during a

protest.

In the “Statement of Claim,” plaintiff asserts that on June 28, 2020, she was part of a group

of peaceful protesters. (Docket No. 1 at 6). As the protest turned onto a street called “Portland PL,”

plaintiff saw “a man standing on the side of his home pointing a rifle at the protestors.” Plaintiff

states that she “proceeded to walk up the street” with her group, whereupon a woman came out of

the house. According to plaintiff, the woman looked disoriented and had a handgun with her finger

on the trigger. She alleges that the woman – who she identifies as Patricia McCloskey – pointed

the gun at her. Plaintiff states that she yelled at Patricia McCloskey, saying “what are you doing,

we are not here for you.” Patricia McCloskey purportedly yelled back “I don’t care!”

Plaintiff states that she has “suffered PTSD from this incident,” and that it has affected her

life, her work, her relationship with her children, and her relationships with others. She asserts that

“due to the negligent behavior of Mark and Patricia McCloskey,” she has suffered anxiety and

depression. Plaintiff contends that both defendants have caused her to go to therapy. She also

insists that both defendants have “used the images from that day to capitalize off of [her] pain and

suffering,” including going “onto the media to slander [her] position as a protester,” and eventually

running “for office with the same images that caused [her so] much pain.”

With regard to relief, plaintiff states that she is seeking monetary damages for intentional

infliction of emotional distress, and for the violation of her civil rights. Specifically, she asks for

$20 million in punitive damages. (Docket No. 1 at 7).

In an attached “Memorandum for Clerk,” plaintiff repeats that her civil rights were

violated, and that she was diagnosed with PTSD due to the events on June 28, 2020. (Docket No.

1 at 8). She further notes that both Mark and Patricia McCloskey were “found guilty of unlawful

use of a weapon,” and “both attempted to retrieve their weapons in 2022, but were denied.”

Plaintiff notes that they have shown no remorse, and have built notoriety “off of [her] pain.”

Discussion

Plaintiff is a self-represented litigant who has filed a civil action against Mark and Patricia

McCloskey, alleging that they violated her civil rights by pointing weapons at her during a protest.

Because she is proceeding in forma pauperis, the Court reviewed her complaint under 28 U.S.C. §

1915. Based on that review, and for the reasons discussed below, the Court will direct plaintiff to

show cause as to why this action should not be dismissed for lack of subject matter jurisdiction.

A. Federal Subject Matter Jurisdiction

Subject matter jurisdiction refers to a court’s power to decide a certain class of cases.

LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006). “Federal courts are not courts of

general jurisdiction; they have only the power that is authorized by Article III of the Constitution

and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986). See also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“Federal courts are

courts of limited jurisdiction, possessing only that power authorized by Constitution and statute”).

The presence of subject matter jurisdiction is a threshold requirement that must be assured in every

federal case. Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir. 1990). See also

Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (“The threshold requirement in every

federal case is jurisdiction and we have admonished the district court to be attentive to a

satisfaction of jurisdictional requirements in all cases”). “Subject matter jurisdiction can never be

waived or forfeited.” Wagstaff & Cartmell, LLP v. Lewis, 40 F.4th 830, 838 (8th Cir. 2022).

Because jurisdiction is a threshold requirement, the issue of subject matter jurisdiction may

be raised at any time, by any party or the court. Gray v. City of Valley Park, Mo., 567 F.3d 976,

982 (8th Cir. 2009). See also City of Kansas City, Mo. v. Yarco Co., Inc., 625 F.3d 1038, 1040 (8th

Cir. 2010) (“Federal courts have an independent duty to determine subject matter jurisdiction, even

where the matter is raised for the first time on appeal and on the court’s own motion”). The burden

of proving subject matter jurisdiction belongs to the plaintiff. V S Ltd. P’ship v. Dep’t of Hous. &

Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). See also Magee v. United States, 9 F.4th 675,

680 (8th Cir. 2021) (“The burden of proving the existence of subject matter jurisdiction rests with

the party invoking federal jurisdiction”).

Federal courts have subject matter jurisdiction over both federal question cases and

diversity of citizenship cases. See Auto-Owners Ins. Co. v. Tribal Court of Spirit Lake Indian

Reservation, 495 F.3d 1017, 1020 (8th Cir. 2007) (finding that subject matter jurisdiction is lacking

if neither diversity of citizenship nor federal question jurisdiction applies); and McLaurin v. Prater,

30 F.3d 982, 984-85 (8th Cir. 1994) (noting that Congress has directed that district courts shall

have jurisdiction in both federal question and diversity cases). In this case, plaintiff suggests that

both types of jurisdiction are present. Upon the Court’s review, however, she has not adequately

asserted either type.

B. Federal Question Jurisdiction

Federal question jurisdiction gives district courts “original jurisdiction over civil actions

arising under the Constitution, laws, or treaties of the United States.” Griffioen v. Cedar Rapids &

Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015). See also 28 U.S.C. § 1331. Whether a

claim arises under federal law is determined by reference to the “well-pleaded complaint.” Great

Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329 (8th Cir. 2016).

The well-pleaded complaint rule provides that jurisdiction exists only when a federal question is

presented on the face of a plaintiff’s properly pleaded complaint. Markham v. Wertin, 861 F.3d

748, 754 (8th Cir. 2017). See also Thomas v. United Steelworkers Local 1938, 743 F.3d 1134,

1139 (8th Cir. 2014) (“Under the well-pleaded complaint rule, a federal question must exist on the

face of the plaintiff’s properly pleaded complaint in order to establish federal question subject

matter jurisdiction”).

Plaintiff’s complaint must establish “either that federal law creates the cause of action or

that the plaintiff’s right to relief necessarily depends on the resolution of a substantial question of

federal law.” Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998). See also Northwest South

Dakota Production Credit Ass’n v. Smith, 784 F.2d 323, 325 (8th Cir. 1986) (stating that “[a] non-

frivolous claim of a right or remedy under a federal statute is sufficient to invoke federal question

jurisdiction”). “If the asserted basis of federal jurisdiction is patently meritless, then dismissal for

lack of jurisdiction is appropriate.” Biscanin v. Merrill Lynch & Co., Inc., 407 F.3d 905, 907 (8th

Cir. 2005).

In this case, plaintiff has not presented a federal question on the face of her complaint. Her

proposed basis for federal question jurisdiction is RSMo § 571.030. This is a Missouri criminal

statute regarding the unlawful use of a weapon. There appear to be no federal statutes, federal

treaties, or constitutional provisions at issue in this case. Plaintiff is not suing a federal agency or

employee. While plaintiff mentions the involvement of the St. Louis Metropolitan Police in these

events, they are nowhere present in the “Statement of Claim.”

Based on plaintiff’s references to civil rights violations, it appears she may be attempting

to bring an action under 42 U.S.C. § 1983. However, she has not alleged that defendants are state

actors or acted under color of state law. To the contrary, they are alleged to be homeowners who

apparently pointed weapons at protesters who were on their street.

For all of these reasons, plaintiff has not carried her burden of showing the existence of

federal question jurisdiction.

C. Diversity of Citizenship Jurisdiction

“Under 28 U.S.C. § 1332(a), district courts have original diversity jurisdiction over civil

actions when the matter in controversy exceeds $75,000, without considering interest and costs,

and when the citizenship of each plaintiff is different from the citizenship of each defendant.” Ryan

ex rel. Ryan v. Schneider Nat. Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). Subject matter

jurisdiction premised upon diversity of citizenship is measured by “the state of facts that existed

at the time of filing.” See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004).

With regard to the amount in controversy, a complaint making a good faith allegation of

the jurisdictional amount is sufficient to confer jurisdiction. Scottsdale Ins. Co. v. Universal Crop

Prot. All., LLC, 620 F.3d 926, 931 (8th Cir. 2010). However, a “complaint will be dismissed if it

appears to a legal certainty that the claim is really for less than the jurisdictional amount.” Id. See

also Kopp v. Kopp, 280 F.3d 883, 884 (8th Cir. 2002). “The legal certainty standard is met where

the legal impossibility of recovery is so certain as virtually to negative the plaintiff’s good faith in

asserting the claim.” Peterson v. The Travelers Indem. Co., 867 F.3d 992, 995 (8th Cir. 2017).

As to diversity of the parties, “[c]omplete diversity of citizenship exists where no defendant

holds citizenship in the same state where any plaintiff holds citizenship.” OnePoint Solutions, LLC

v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). Diversity jurisdiction requires that the parties be

citizens of different states, not merely residents. Sanders, 823 F.2d at 216. For purposes of

diversity, state citizenship “requires an individual’s physical presence in the state coupled with an

indefinite intention there to remain.” Blakemore v. Missouri Pac. R.R. Co., 789 F.2d 616, 618 (8th

Cir. 1986). “Once an individual has established his state citizenship, he remains a citizen of that

state until he legally acquires a new state of citizenship.” Eckerberg v. Inter-State Studio &

Publishing Co., 860 F.3d 1079, 1086 (8th Cir. 2017).

In this case, plaintiff seeks damages well in excess of the threshold amount. Nevertheless,

she has failed to show that diversity exists, because she shares citizenship with the defendants.

Therefore, plaintiff has not carried her burden of showing the existence of diversity of citizenship

jurisdiction.

D. Order to Show Cause

Subject matter jurisdiction is a threshold inquiry in every federal court, and cannot be

waived. See Nuevos Destinos, LLC v. Peck, 999 F.3d 641, 646 (8th Cir. 2021). Plaintiff bears the

burden of properly asserting the Court’s jurisdiction. See Two Eagle v. United States, 57 F.4th 616,

620 (8th Cir. 2023) (“The plaintiff bears the burden to establish subject-matter jurisdiction”). If

the Court determines – at any time – that it lacks subject matter jurisdiction, it must dismiss the

action. See Fed. R. Civ. P. 12(h)(3).

As discussed above, plaintiff has failed to establish the existence of either federal question

or diversity of citizenship jurisdiction. The case is thus subject to dismissal. Before dismissing, the

Court will give plaintiff the opportunity to show cause as to why this action should not be

dismissed. Plaintiff will be given thirty (30) days from the date of this order in which to submit a

written response establishing the Court’s jurisdiction over this matter. If plaintiff fails to respond

within thirty (30) days from the date of this order, this action will be dismissed without prejudice

and without further notice.

E. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 3). In civil cases, a pro se

litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721

F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998)

(stating that “[a] pro se litigant has no statutory or constitutional right to have counsel appointed

in a civil case”). Rather, a district court may appoint counsel in a civil case if the court is

“convinced that an indigent plaintiff has stated a non-frivolous claim…and where the nature of the

litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.”

Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint

counsel for an indigent litigant, a court considers relevant factors such as the complexity of the

case, the ability of the pro se litigant to investigate the facts, the existence of conflicting testimony,

and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437

F.3d 791, 794 (8th Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. In particular, plaintiff has been ordered to show cause as to why this case

should not be dismissed for lack of subject matter jurisdiction. The Court will entertain future

motions for appointment of counsel as the case progresses, if appropriate.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that plaintiff shall show cause in writing and within thirty

(30) days of the date of this order as to why this case should not be dismissed for lack of subject

matter jurisdiction.

IT IS FURTHER ORDERED that if plaintiff fails to show cause in writing and within

thirty (30) days of the date of this order as to why this case should not be dismissed for lack of

subject matter jurisdiction, the Court will dismiss this action without prejudice and without further

notice.

Dated this 16th day of May, 2023.

/s/ Noelle C. Collins

NOELLE C. COLLINS

UNITED STATES MAGISTRATE JUDGE