MORROW v. DOE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EDDIE ANTHONY MORROW, )

)

Plaintiff, )

)

v. ) Case No. 1:24-cv-68-SPB

)

JOHN DOE )

OWNER, F&P DEVELOPMENT, )

et al., )

)

Defendants. )

MEMORANDUM OPINION

Plaintiff Eddie Anthony Morrow commenced the instant civil action by filing a motion to

proceed in forma pauperis, ECF No. [1], and attaching to it a complaint directed against two

“John Doe” Defendants affiliated with “Millville Insurance Co.” and “F&P Development,”

respectively. ECF No. [1-2]. Plaintiff avers that, on March 23, 2022, he was sleeping at his

house on Ash Street in the City of Erie when “the ceiling in [his] bedroom collapsed on top of

[him], causing back and neck injuries.” ECF No. 1-2 at 4-5. Plaintiff states that he has required

physical therapy and medications to control his pain. Id. at 5. He seeks: (1) compensatory

damages in the amount of $10,000 against each Defendant for his alleged pain and suffering, (2)

compensatory damages in the amount of $10,000 against each Defendant for “cruel and unusual

punishment”; and (3) punitive damages in the amount of $10,000 against each Defendant “for

violations of Plaintiff’s civil rights.” Id.

1. Review of Plaintiff’s Application for Leave to Proceed In Forma Pauperis

The United States Court of Appeals for the Third Circuit has instructed the district courts

to utilize a two-step analysis to determine whether to direct service of a complaint where the

plaintiff seeks to proceed in forma pauperis. See Roman v. Jeffes, 904 F.2d 192, 194 n. 1 (3d

Cir. 1990). “First, the district court evaluates a litigant's financial status and determines whether

(s)he is eligible to proceed in forma pauperis under § 1915(a). Second, the court assesses the

complaint under [§ 1915(e)(2)] to determine whether it is frivolous.” Id. (citing Sinwell v. Shapp,

536 F.2d 15 (3d Cir. 1976)); Schneller v. Abel Home Care, Inc., 389 F. App'x 90, 92 (3d Cir.

2010). Based upon a review of Plaintiff’s application, the Court finds that Plaintiff is without

sufficient funds to pay the required filing fee. Therefore, he will be granted leave to proceed in

forma pauperis, and the Clerk will be directed to docket his complaint.

2. Review of Plaintiff’s Complaint Under 28 U.S.C. §1915(e)(2)

Pursuant to 28 U.S.C. § 1915(e)(2), as amended, “[t]he court shall dismiss the case at any

time if the court determines that ... (B) the action or appeal (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.” A claim is frivolous if it: (1) is based upon an indisputably

meritless legal theory and/or, (2) contains factual contentions that are clearly baseless. Neitzke v.

Williams, 490 U.S. 319, 327 (1989).

Whether a complaint fails to state a claim under §1915(e)(2)(B)(ii) is governed by the

same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).

See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). This standard requires the

court to determine whether the complaint contains “sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotations omitted). When reviewing a complaint to determine whether it states a cognizable

legal claim, we accept the well-pled factual averments as true and construe all reasonable

inference arising from the facts in favor of the complainant. See Taksir v. Vanguard Grp., 903

F.3d 95, 96–97 (3d Cir. 2018).

The Federal Rules of Civil Procedure also require the Court to dismiss an action if, at any

time, it appears the Court lacks subject matter jurisdiction over the claims in the case. See Fed.

R. Civ. P. 12(h)(3). That is because federal court possess only limited jurisdiction; consequently,

“this Court is compelled to satisfy itself, sua sponte, even where the issue is not fully raised,

whether jurisdiction is appropriate.” Clark v. Applied Cardiac Sys. Inc., No. 21CV1123, 2022

WL 798370, at *2 (W.D. Pa. Mar. 16, 2022).

Because the complaint in this case was filed by a pro se plaintiff, it must be liberally

construed and “held ‘to less stringent standards than formal pleadings drafted by lawyers.’”

Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (quoting Haines v. Kerner, 404 U.S. 519,

520-21 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). And, unless further

amendment would be inequitable or futile, this Court must grant the Plaintiff an opportunity to

cure any legal defects in his pleading. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114

(3d Cir. 2002).

In this case, the Court is compelled to dismiss the complaint without leave for further

amendment. Plaintiff cannot state a viable federal civil rights claim, nor can he establish federal

jurisdiction over his state law claims.

a. Plaintiff Has Failed to State a Viable Federal Claim

Because Plaintiff references the alleged violation of his civil rights and also alludes to

“cruel and unusual punishment,” the Court assumes he is attempting to state a claim under 42

U.S.C. §1983. That statute provides a private right of action as against “any 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.”

To state a viable §1983 claim, Plaintiff must allege the violation of a federally guaranteed

right by a person who was acting under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988). Whether a defendant acted under color of state law -- i.e., was a state actor -- depends on

whether there is “such a close nexus between the State and the challenged action that seemingly

private behavior may be fairly treated as that of the State itself.” Leshko v. Servis, 423 F.3d 337,

339 (3d Cir. 2005) (internal quotations omitted). In making this determination, the Court

considers: “(1) whether the private entity has exercised powers that are traditionally the

exclusive prerogative of the state; (2) whether the private party has acted with the help of or in

concert with state officials; and (3) whether the state has so far insinuated itself into a position of

interdependence with the acting party that it must be recognized as a joint participant in the

challenged activity.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and

alteration omitted).

Here, there are no averments in the complaint to plausibly establish the Defendants’

status as state actors. Accordingly, Plaintiff has not stated a viable §1983 claim. Nor is it

apparent that Plaintiff is attempting to invoke any other federal statute as a basis for this Court’s

jurisdiction. See 28 U.S.C. §1331.

b. Plaintiff Has Not Established Diversity-of-Citizenship Jurisdiction

Based on the substance of Plaintiff’s grievance, the Court assumes he may have state law

claims predicated on the alleged breach of a contract, breach of an express or implied warranty,

negligence, or the like. However, the Court cannot properly exercise jurisdiction over Plaintiff’s

putative state law claims unless (i) there is complete diversity of citizenship as between the

Plaintiff and every Defendant, and (ii) the matter in controversy exceeds $75,000, exclusive of

interest and costs. See 28 U.S.C. §1332(a); see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 68

(1996) (noting that jurisdiction under 28 U.S.C. §1332 “applies only to cases in which the

citizenship of each plaintiff is diverse from the citizenship of each defendant”); Bumberger v.

Ins. Co. of N. Am., 952 F.2d 764, 767 (3d Cir. 1991) (“[D]iversity jurisdiction does not exist

unless each defendant is a citizen of a different State from each plaintiff.”) (alteration and

emphasis in original).

For purposes of determining jurisdiction under 28 U.S.C. §1332(a), a natural person is

deemed to be a citizen of the state where he is domiciled. Swiger v. Allegheny Energy, Inc., 540

F.3d 179, 182 (3d Cir. 2008) (citing Gilbert v. David, 235 U.S. 561, 569 (1915)). To be

domiciled in a state, a person must reside there and intend to remain indefinitely; therefore,

allegations about a party’s “residency,” as opposed to “citizenship” or “domicile” are

“jurisdictionally inadequate in [a] diversity of citizenship case.” McNair v. Synapse Group Inc.,

672 F.3d 213, 219 n.4 (3d Cir. 2012) (citing Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir.

1972) (“[M]ere residency in a state is insufficient for purposes of diversity [of citizenship].”));

see Odell v. One W. Bank, NA, No. CV 16-0984, 2016 WL 3551621, at *1 (E.D. Pa. June 30,

2016).

For purposes of §1332(a) jurisdiction, a limited liability company is considered to be a

citizen of every state in which its members are citizens. See Americold Realty Trust v. Conagra

Foods, Inc., 577 U.S. 378, 381 (2016) (discussing the “oft-repeated rule” that the citizenship of

an unincorporated entity depends upon the citizenship of its members). A corporation, by

contrast, is deemed to be a citizen of every state where it is incorporated as well as the state

where its principal place of business is located. See 28 U.S.C. § 1332(c)(1). “A corporation’s

principal place of business is its ‘nerve center,’ that is, the place ‘where a corporation's officers

direct, control, and coordinate the corporation's activities.’” Grabowski v. Liberty Mut. Fire Ins.

Co., No. CIV.A. 3:14-815, 2014 WL 1745893, at *2 (M.D. Pa. May 1, 2014) (quoting Hertz

Corp. v. Friend, 559 U.S. 77 (2010)).

Importantly, “even a pro se plaintiff must affirmatively plead the citizenship of the

individual defendants in order for the court to determine whether complete diversity of the

parties in fact exists and thus whether the court has jurisdiction to adjudicate the matter.” Hong

Manh Nguyen v. Casino, No. 2:14CV683, 2015 WL 1291807, at *3 (W.D. Pa. Mar. 20, 2015)

(citing Crisafulli v. Ameritas Life Ins. Co., Civil Action No. 13–cv–05937, 2014 WL 2611839, at

*3 (D.N.J. June 11, 2014)). To adequately plead diversity, Plaintiff must at least allege that the

defendants are not “citizen[s] of the plaintiff's state of citizenship.” Lincoln Benefit Life Co. v.

AEI Life, LLC, 800 F.3d 99, 107 (3d Cir. 2015).

Here, Plaintiff has failed to plead any party’s citizenship. Although the complaint sets

forth Plaintiff’s Erie address, that is technically insufficient to establish his domicile or status as

a Pennsylvania citizen. As for the Defendants, there are no averments at all concerning the state

of incorporation or principal place of business for either Millville Insurance Co. or F&B

Development. Nor has Plaintiff offered any allegations concerning the citizenship of the John

Doe Defendant(s). The complaint does provide a Pennsylvania mailing address for Millville

Insurance Co., but to the extent that both Millville Insurance Co. and Plaintiff are citizens of this

Commonwealth, jurisdiction under 28 U.S.C. §1332 is lacking.

It is also the Plaintiff’s burden to “affirmatively plead the amount in controversy on the

face of the complaint.” Hong Manh Nguyen, 2015 WL 1291807, at *3; see also Gray v.

Occidental Life Ins. Co. of Cal., 387 F.2d 935, 937 (3d Cir. 1968). Generally, “‘[u]nless the law

gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in

good faith; it must appear to a legal certainty that the claim is really for less than the

jurisdictional amount to justify dismissal.’” Id. (quoting Graham Co. v. Griffing, Civil Action

No. 08–1394, 2009 WL 1407779, at *1 (E.D. Pa. May 19, 2009)). Here, Plaintiff seeks $60,000

in damages ($30,000 from each Defendant) -- an amount which is plainly below the

jurisdictional threshold. Nor is there any basis for inferring that the amount in controversy

actually involves a greater sum. Accordingly, Plaintiff’s complaint is insufficient to establish

subject matter jurisdiction under 28 U.S.C. §1332.

As noted, a plaintiff commencing an action in federal court bears the burden of

establishing federal jurisdiction. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105

(3d Cir. 2015). Here, Plaintiff has not done so. Accordingly, while Plaintiff’s request to proceed

in forma pauperis will be granted, his complaint must be dismissed for lack of subject matter

jurisdiction. And because it does not appear that the jurisdictional defects in Plaintiff’s

complaint can be cured, the Court’s dismissal will be without leave to amend. However, the

dismissal is also without prejudice to Plaintiff’s right to attempt to reassert his claims in state

court.

An appropriate order follows.

______________________________

SUSAN PARADISE BAXTER

United States District Judge