Ford v. Board of Healing Arts

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JAMIE SUE FORD, )

)

Plaintiff, )

v. ) Case No. 4:23-cv-1392-SEP

)

BOARD OF HEALING ARTS, )

)

Defendant. )

MEMORANDUM AND ORDER

Before the Court is self-represented Plaintiff Jamie Sue Ford’s second Application to

Proceed in District Court Without Prepaying Fees and Costs, Doc. [6]. For the reasons set forth

below, the motion is granted, but Plaintiff is ordered to show cause as to why the Complaint

should not be dismissed for lack of subject matter jurisdiction.

DISCUSSION

I. Application to Proceed in District Court Without Prepaying Fees and Costs

In November 2023, Plaintiff filed this case with a blank Application to Proceed in

District Court without Prepaying Fees or Costs. See Doc. [2]. Because the Court could not

determine whether Plaintiff met the financial requirements, Plaintiff was ordered to submit a

completed application or pay the full filing fee. See Doc. [5]. Plaintiff complied, and the second

application states that Plaintiff is not currently employed and has no available funds or assets.

See Doc. [6]. Therefore, the Court will grant Plaintiff’s second Application to Proceed in

District Court Without Prepaying Fees and Costs. See 28 U.S.C. § 1915(a)(1) (the Court may

authorize the commencement of a civil action without prepayment of fees if the plaintiff

demonstrates he or she “is unable to pay such fees or give security therefor”).

II. Order to Show Cause

“Subject matter jurisdiction refers to the 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). “Subject-matter

jurisdiction is a threshold requirement which 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.”). Thus, the issue of subject matter jurisdiction may be

raised at any time, by any party or the Court. Gray v. City of Valley Park, 567 F.3d 976, 982

(8th Cir. 2009).

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

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

Rsrv., 495 F.3d 1017, 1020 (8th Cir. 2007) (subject matter jurisdiction is lacking if neither

diversity of citizenship nor federal question jurisdiction applies); McLaurin v. Prater, 30 F.3d

982, 984-85 (8th Cir. 1994) (noting “Congress has directed that district courts ‘shall’ have

jurisdiction in both” federal question and diversity cases).

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) (quoting 28 U.S.C. § 1331).

“[W]hether a claim ‘arises under’ federal law must be 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) (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808

(1986)). That is, “jurisdiction exists only when a federal question is presented on the face of the

plaintiff’s properly pleaded complaint.” Markham v. Wertin, 861 F.3d 748, 754 (8th Cir. 2017)

(quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)); see also Thomas v. United

Steelworkers Loc. 1938, 743 F.3d 1134, 1139 (8th Cir. 2014). A 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) (quoting Franchise Tax Bd. v. Constr. Laborers

Vacation Tr., 463 U.S. 1, 27-28 (1983)).

“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). 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). But a “complaint will be dismissed if it ‘appear[s] to a legal certainty that the claim is

really for less than the jurisdictional amount.’” Id. (alteration in original) (quoting 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)

(alteration in original) (quoting Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 822 (8th Cir.

2011)). “Complete diversity of citizenship exists where no defendant holds citizenship in the

same state where any plaintiff holds citizenship.” OnePoint Sols., LLC v. Borchert, 486 F.3d

342, 346 (8th Cir. 2007).

Plaintiff has not pled facts that allow the Court to determine its jurisdiction. Under the

section titled “federal question,” Plaintiff states: “My Rights for Disciplinary Act. They

wouldn’t do anything since 1998 filed.” Doc. [1] at 3. Plaintiff also attached various documents

to the Complaint, including several unsent draft emails to unidentified individuals and several

form complaints to the State of Missouri Division of Professional Registration. Doc. [1-1]. The

attachments contain lengthy stream-of-consciousness narratives that are difficult to follow. It

appears Plaintiff is complaining of an incident that occurred in 1992, in which a physician

allegedly committed medical malpractice and attempted to murder Plaintiff. Nothing in the

Complaint or attachments invokes federal law.

Plaintiff also acknowledges that she and Defendant are citizens of Missouri. See Doc. [1]

at 4. Therefore, the Court does not have diversity jurisdiction over this action.

If the Court determines at any time that it lacks subject matter jurisdiction, the action

must be dismissed. See Fed. R. Civ. P. 12(h)(3). Accordingly, within thirty (30) days of the date

of this Order, Plaintiff must show cause why this case should not be dismissed for lack of subject

matter jurisdiction. Failure to comply with this Order will result in the dismissal of this action

without prejudice and without further notice.

III. Motion to Appoint Counsel

Plaintiff also filed a Motion for Appointment of Counsel. Doc. [3]. A litigant in a civil

case 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)

(“A pro se litigant has no statutory or constitutional right to have counsel appointed in a civil

case.”). 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) (citation omitted) (quoting Johnson v. Williams, 788

F.2d 1319, 1322 (8th Cir. 1986) (citing 28 U.S.C. § 1915(e)). When deciding whether to appoint

counsel, courts consider 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 her claim. Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).

Appointment of counsel is not warranted at this time. Plaintiff has yet to file a complaint

that survives initial review, so the Court cannot determine at this point whether Plaintiff has

presented non-frivolous claims. And there is no indication that Plaintiff cannot investigate the

facts and present her claims to the Court. The Court will entertain future motions for

appointment of counsel as the case progresses, if appropriate.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff's first Application to Proceed in District

Court Without Prepaying Fees or Costs, Doc. [2], is DENIED as moot.

IT IS FURTHER ORDERED that Plaintiffs second Application to Proceed in District

Court Without Prepaying Fees or Costs, Doc. [6], is GRANTED.

IT IS FURTHER ORDERED that Plaintiff is required to show cause in writing and

within thirty (30) days of the date of this Order why this action should not be dismissed for lack

of subject matter jurisdiction.

IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Counsel, Doc.

[3], is DENIED.

IT IS FURTHER ORDERED that failure to comply with this Order will result in the

dismissal of this case without prejudice and without further notice.

Dated this 19™ day of April, 2024.

Fuack. Leg.

SARAH E. PITLYK

UNITED STATES DISTRICT JUDGE