Montero v. Tulsa Airport Improvement Trust

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

FRANK R. MONTERO, )

Plaintiff, )

) Case No. 23-CV-0118-CVE-SH

TULSA AIRPORT IMPROVEMENT TRUST )

a/k/a T.A.LT., CITY OF TULSA, and )

JUDGE TAMMY BRUCE, )

Defendants. )

OPINION AND ORDER

On March 27, 2023, plaintiff Frank R. Montero filed a pro se complaint (Dkt. # 1), and a

motion to proceed in forma pauperis (Dkt. #2). The Court addresses plaintiff s complaint sua sponte

because “[f]ederal courts ‘have an independent obligation to determine whether subject-matter

Jurisdiction exists, even in the absence of a challenge from any party,’ and thus a court may sua

sponte raise the question of whether there is subject matter jurisdiction ‘at any stage in the

litigation.’” See Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir.

2006) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 501 (2006)); see also FED. R. Civ. P.

12(h)(3) (‘If the court determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action.”).

In this case, plaintiff is proceeding pro se and, consistent with Supreme Court and Tenth

Circuit precedent, the Court will construe his pro se pleadings liberally. Haines v. Kerner, 404 U.S.

519, 520 (1972); Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). Plaintiff's complaint

alleges that on November 10, 2022, he “discovered [that] [Tulsa Airport Improvement Trust’s

(“T.A.LT.”)] board voted to terminated [his] lease” and sought a forcible entry and detainer order

to his leased property. Dkt. # 1, at 6. Plaintiff alleges that defendants T.A.I.T. and the City of Tulsa

“have labeled [him] a whistle-blower.” Id. Plaintiff’s complaint alludes to alleged “EPA violations”

concerning the installation of septic tanks at an airport controlled by T.A.I.T., and alleges that the

“City of Tulsa and the State of Oklahoma are refusing to stop polluting the water table level and the

Arkansas River.” Id. Plaintiff claims that defendants T.A.I.T. and the City of Tulsa “seek[] to evict

Montero off of [p]ublic [p]roperty[,] pursuing a Forcible Entry and Detainer to take possession of

all of Montero’s [p]rivate [p]roperty.” Id.

Plaintiff’s alleged injuries include that the defendants: “sought to bankrupt” him from

attorney’s fees “in order to hide the crimes of polluting [the] Arkansas River”; “maliciously inflicted

extreme emotional distress” by evicting him; and “forced Montero out of his personally owned

property” in violation of “49 CFR Part 21 Nondiscrimination in Federally-assisted programs of Dept.

of Transportation, Title VI of the Civil Rights Act of 1964 - Title 29, U.S.C., subtitle VII, as

amended.” Id. at 7. Plaintiff seeks a stay of his eviction from the property in question, as well as

a “cease and desist, directed to [Tulsa County Small Claims Court] Judge Tammy Bruce to stay” the

forcible entry and detainer. Id.

Federal courts are courts of limited jurisdiction, and there is a presumption against the

exercise of federal jurisdiction. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005);

Penteco Corp. Ltd. Partnership--1985A v. Union Gas System, Inc., 929 F.2d 1519, 1521 (10th Cir.

1991). The party invoking federal jurisdiction has the burden to allege jurisdictional facts

demonstrating the presence of federal subject matter jurisdiction. McNutt v. General Motors

Acceptance Corp. of Indiana, Inc., 298 U.S. 178, 182 (1936) (“It is incumbent upon the plaintiff

properly to allege the jurisdictional facts, according to the nature of the case.”); Montoya v. Chao,

2

296 F.3d 952, 955 (10th Cir. 2002) (“The burden of establishing subject-matter jurisdiction is on the

party asserting jurisdiction.”). The Court has an obligation to consider whether subject matter

jurisdiction exists, even if the parties have not raised the issue. The Tenth Circuit has stated that

“(f]ederal courts ‘have an independent obligation to determine whether subject-matter jurisdiction

exists, even in the absence of a challenge from any party,’ and thus a court may sua sponte raise the

question of whether there is subject matter jurisdiction ‘at any stage in the litigation.” Image

Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006).

Generally, the “well-pleaded complaint” rule requires that the federal question appear on the

face of the plaintiff's properly pleaded complaint. See Garley v. Sandia Corp., 236 F.3d 1200, 1207

(10th Cir. 2001) (“The presence or absence of federal-question jurisdiction is governed by the

‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal

question is presented on the face of the plaintiff's properly pleaded complaint.”) (citing Caterpillar

Inc. v. Williams, 482 U.S. 386, 392 (1987)). “The complaint must identify the statutory or

constitutional provision under which the claim arises, and allege sufficient facts to show that the case

is one arising under federal law.” Martinez v. United States Olympic Comm., 802 F.2d 1275, 1280

(10th Cir. 1986)). Plaintiff filed this action using the court’s Complaint for Violation of Civil Rights

form, which pro se plaintiffs use to file claims against either state or local officials under 42 U.S.C.

§ 1983 or federal officials under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971) and its progeny. Even construing plaintiff's complaint liberally, it

does not assert a federal constitutional violation or other violation of federal law. Plaintiff is

challenging eviction and forcible entry and detainer orders issued against him by a Tulsa County

court. Eviction and foreclosure are generally matters of state law, and the Supreme Court has

expressly rejected the notion that the Constitution provides any substantive landlord-tenant law.

Lindsey v. Normet, 405 U.S. 56, 68 (1972). While plaintiff’s complaint refers to the Civil Rights

Acts of 1964 and 1973 (the latter of which the Court understands plaintiff to mean the Rehabilitation

Act of 1973), he fails to allege that he is being evicted for a prohibited reason, such as racial

discrimination or any other protected reason, and so the cited statutes are irrelevant to his claim.

Plaintiff also mentions due process and equal protection under the Fourteenth Amendment to the

United States Constitution; however, from his pleadings, it is not at all apparent how they could

apply to his complaint. The facts alleged are clear that plaintiff’s claim is nothing more than a

landlord-tenant dispute, which is within the province of Oklahoma state law. Plaintiff’s suit arises

under Oklahoma state law. No federal question appears on the face of plaintiff’s complaint, and the

federal law cited in the complaint that has nothing to do with the dispute. Plaintiff cannot

manufacture federal question jurisdiction simply by making irrelevant references to federal law in

the pleading. Therefore, plaintiff’s complaint fails to allege facts that the suit arises under federal

law, and the Court finds that plaintiff has not stated a federal claim against defendants.

Plaintiff also alludes to the diversity of parties as a basis for jurisdiction, but diversity

jurisdiction has not been properly alleged. Even if plaintiff is now a citizen of Pennsylvania and

each of the defendants is a citizen of Oklahoma, plaintiff is not seeking damages in excess of

$75,000, as is required for diversity jurisdiction under 28 U.S.C. § 1332. Because the facts in the

complaint do not allege any constitutional violation or other violation of federal law, nor do they

satisfy the requirements for diversity jurisdiction, the Court finds no basis to exercise jurisdiction

over this case and it should be dismissed for lack of subject matter jurisdiction. Regardless of

4

plaintiff's pro se status, the Court cannot permit plaintiff to proceed with the lawsuit when the Court

lacks subject matter jurisdiction over his claims.

IT IS THEREFORE ORDERED that plaintiff’ s complaint (Dkt. # 1) is dismissed for lack

of subject matter jurisdiction. A separate judgment of dismissal is entered herewith.

IT IS FURTHER ORDERED that plaintiffs motion to proceed in forma pauperis (Dkt. #

2) is moot.

DATED this 31st day of March, 2023.

Chia Le

BP eee

CLAIRE V.EAGAN \—

UNITED STATES DISTRICT JUDGE