# Daugherty v. McCloskey

> District Court, E.D. Missouri · May 16, 2023

URL: https://www.frixlaw.com/law-library/cases/10238730

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** May 16, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10238730

## How later opinions describe it (automated extraction)

- 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”
- stating that “[a] non- frivolous claim of a right or remedy under a federal statute is sufficient to invoke federal question jurisdiction”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238730. Public record. Not legal advice.