Carter v. Wilke

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

JOSEPH R. CARTER, )

)

Plaintiff, )

)

VS. ) No. 20-2843-JDT-cgc

)

SLOANE L. WILKE, )

)

Defendant. )

ORDER DISMISSING CASE WITHOUT PREJUDICE,

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On November 13, 2020, the pro se Plaintiff, Joseph R. Carter, who is incarcerated

at the Shelby County Criminal Justice Center in Memphis, Tennessee, filed a civil

complaint. (ECF No. 1.) After Carter submitted an appropriate motion, the Court issued

an order granting leave to proceed in forma pauperis and assessing the $350 civil filing fee

pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF

No. 5.)

Carter sues Sloane L. Wilke, who is identified only as a caregiver. (ECF No. 1 at

PageID 2.) The factual allegations in the complaint consist of one sentence: “I am filing

a lawsuit for slander/defamation of character for remarks she posted on social media.” (Id.)

He seeks “monetary/punitive damages for the harm she has caused me and my family.”

(Id. at PageID 3.)

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))).

This Court does not have subject matter jurisdiction over Carter’s defamation claim,

which arises 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. As Carter clearly states that he is suing the Defendant

for defamation, there is 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).

The complaint does not allege that Carter and Wilke are citizens of different states,

as required for diversity jurisdiction. The complaint indicates that Wilke currently resides

in Germantown, Tennessee, (ECF No. 1 at PageID 2), and Carter does not allege she is a

citizen of a state other than Tennessee.1 Neither does Carter allege he is a citizen of a

different state.2 Accordingly, the Court does not have jurisdiction to hear Carter’s

defamation claim. This case is therefore DISMISSED WITHOUT PREJUDICE in its

entirety for lack of subject matter jurisdiction.

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 must 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).

2 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).

Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure

24(a)(3), it is CERTIFIED that any appeal by Carter would not be taken in good faith. If

Carter nevertheless files a notice of appeal and wishes to pay the $505 appellate filing fee

using the installment procedures of the PLRA, 28 U.S.C. §§ 1915(a)-(b), he also must

submit an updated in forma pauperis affidavit and a current, certified copy of his inmate

trust account statement for the last six months.

The Clerk is directed to prepare a judgment.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE