Forrest v. Moore

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

JUSTIN R. FORREST, )

)

Plaintiff, )

)

VS. ) No. 18-1248-JDT-cgc

)

DR. MIKE MOORE, ET AL., )

)

Defendants. )

)

ORDER DISMISSING CASE WITHOUT PREJUDICE,

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,

AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Justin R. Forrest, a “three-strike” filer under the Prison Litigation Reform Act (PLRA), 28

U.S.C. § 1915(g), filed a pro se civil complaint and a motion to proceed in forma pauperis. (ECF

Nos. 1 & 2.) He is currently incarcerated at the Obion County Jail (Jail) in Union City, Tennessee.

The Court issued an order finding that Forrest had sufficiently alleged he was in imminent danger

when he filed the complaint but ordering him to submit a copy of his inmate trust account in order

to take advantage of the PLRA’s installment procedures. (ECF No. 4.) However, Forrest’s copy

of that order was returned as undeliverable. (ECF No. 5.) After almost a month elapsed without

Forrest providing a new address, the Court denied leave to proceed in forma pauperis and

dismissed the case without prejudice. (ECF No. 6.)

Thereafter, Forrest filed a motion to reconsider, stating he did not receive the order because

he was temporarily “out to court” for five weeks and Obion County did not hold his mail. (ECF

No. 9.) He further stated he was unable to obtain a copy of his trust account statement. (Id. at

PageID 29.) The Court granted his motion to reconsider, re-opened the case, granted leave to

proceed in forma pauperis, and assessed the $350 filing fee pursuant to the PLRA,28 U.S.C.

§§ 1915(a)-(b). (ECF No. 10.)

The named Defendants are Dr. Mike Moore, a physician at the Jail; Correctional

Officer/Jailer Kathy Johnson; and Obion County Sheriff Carl Jackson. (ECF No. 1 at PageID 2.)

The Defendants are sued in “their own official individual capacit[ies].” (Id. at PageID 7.)

Forrest alleges in the complaint that during intake at the Jail on November 27, 2018, Moore

and Johnson gave him a tuberculosis skin test via injection. (Id. at PageID 2.) He claims he had

an adverse skin reaction, which Jail personnel did not check until six days later. (Id. at PageID 3.)

He refused the oral and topical medications that Johnson offered because Forrest wanted to “see a

real doctor or nurse.” (Id. at PageID 3-4.) When he saw an unnamed physician on December 10,

2018, the doctor “acted as if he didn’t want to see me” and prescribed “triple antibiotic ointment”

with bandages. (Id. at PageID 4.) As of December 15, 2018, Plaintiff was “still suffering from

the same rotten skin condition.” (Id.)

The complaint asserts claims for medical malpractice, negligence, neglect, and lack of “due

diligence.” (Id. at PageID 4-6.) Forrest seeks $250,000 in damages. (Id. at PageID 7.)

The Court is required to screen prisoner complaints and to dismiss any complaint, or any

portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may be

granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may be

granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662,

677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied.

Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts the complaint’s “well-

pleaded” factual allegations as true and then determines whether the allegations “plausibly suggest

an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal,

556 U.S. at 681). Conclusory allegations “are not entitled to the assumption of truth,” and legal

conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Although a

complaint need only contain “a short and plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make

a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555

n.3.

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted

by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting

Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt

from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. Jan. 31, 2011)

(affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements”

and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”

(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

The Court does not have subject matter jurisdiction over Forrest’s claims, which arise

solely under Tennessee law. “Federal courts are courts of limited jurisdiction. Unlike state trial

courts, they do not have general jurisdiction to review questions of federal and state law, but only

the authority to decide cases that the Constitution and Congress have empowered them to resolve.”

Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 474 (6th Cir. 2008); see also Kokkonen v. Guardian

Life Ins. Co., 511 U.S. 375, 377 (1994) (jurisdiction of the federal courts “is not to be expanded

by judicial decree”). “[F]ederal courts have a duty to consider their subject matter jurisdiction in

regard to every case and may raise the issue sua sponte.” Answers in Genesis, Inc. v. Creation

Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009).

“A party seeking to invoke the jurisdiction of the federal courts . . . bears the burden of

establishing that such jurisdiction exists.” Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 474 (6th

Cir. 2008) (per curiam). Rule 8(a)(1) of the Federal Rule of Civil Procedure requires that the

complaint contain “a short and plain statement of the grounds for the court’s jurisdiction . . . .” In

addition, Rule 12(h)(3) provides that “[i]f the court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action.”

There are two kinds of federal jurisdiction. First, the federal district courts have

jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. Notwithstanding his use of the § 1983 complaint form, Forrest clearly

states he is suing the Defendants for medical malpractice, neglect, and lack of “due diligence.”

There is, therefore, no federal question jurisdiction in this case.

Second, federal jurisdiction may be based on diversity of citizenship, meaning it applies to

cases between “citizens of different states.” 28 U.S.C. § 1332(a)(1). Diversity of citizenship is

present where the plaintiff is a citizen of one state and all of the defendants are citizens of other

states, plus the amount in controversy in the case is more than $75,000. See Exact Software N.

Am., Inc. v. DeMoisey, 718 F.3d 535, 541 (6th Cir. 2013).

Forrest has not alleged that diversity of citizenship is present in this case. Though he

indicates he is incarcerated in Tennessee and that the Defendants work in Obion County,

Tennessee, he does not allege either his own citizenship or that of the Defendants.1 Therefore, the

Court does not have jurisdiction to hear Forrest’s claims, and this case is hereby DISMISSED

WITHOUT PREJUDICE in its entirety for lack of subject matter jurisdiction.

It is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate

Procedure 24(a) that an appeal by Forrest would not be taken in good faith. Leave to appeal in

forma pauperis is DENIED.

The Clerk is directed to prepare a judgment.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE

1 Alleging that one currently resides in a particular state is not the same as alleging that

one is a citizen of that state. Citizenship is based on domicile, which requires that a person “be

physically present in the state and . . . have either the intention to make his home there

indefinitely or the absence of an intention to make his home elsewhere.” Deasy v. Louisville &

Jefferson Cnty. Metro. Sewer Dist., 47 F. App’x 726, 728 (6th Cir. 2002) (emphasis added).

There is a presumption that a prisoner retains his prior citizenship while incarcerated. Stifel v.

Hopkins, 477 F.2d 1116, 1126 (6th Cir. 1973); see also Johnson v. Corr. Corp. of Am., 26 F.

App’x 386, 388 (6th Cir. 2001). Forrest does not allege, however, that his citizenship is in a

state other than Tennessee notwithstanding the fact he is incarcerated here.