United States District Court, S.D. Ohio, Western Division
ROBERT L. SIMMONS, Plaintiff,
KIM WEBB, EXECUTIVE DIRECTOR Defendant.
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.
January 8, 2020, Plaintiff Robert L. Simmons tendered a
pro se complaint, together with a motion seeking to
proceed in this court in forma pauperis, or without
payment of the requisite filing fee. (Doc. 1). By separate
Order, his motion has been granted, resulting in the filing
of the tendered complaint.
General Screening Authority
to service of process, this Court must conduct a sua
sponte review of the complaint to determine whether the
complaint, or any portion of it, should be dismissed because
it is frivolous, malicious, fails to state a claim upon which
relief may be granted or seeks monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B). Although a plaintiff's
pro se complaint must be “liberally
construed” and “held to less stringent standards
than formal pleadings drafted by lawyers, ” the
complaint must “give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citation and quotation omitted)). In addition to its
obligation to screen the complaint under 28 U.S.C.
§1915(e)(2), this Court must determine whether it has
subject matter jurisdiction over this action.
Subject Matter Jurisdiction
courts are courts of limited jurisdiction.
Federal courts are obliged to act sua sponte
whenever a question about jurisdiction arises. See, e.g.,
Ins. Corp. of Ireland, Ltd., 456 U.S. at 702, 102 S.Ct.
2099 (stating that “a court, including an appellate
court, will raise lack of subject-matter jurisdiction on its
own motion”); St. Paul *726 Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 287 n. 10, 58 S.Ct. 586, 82
L.Ed. 845 (1938); Answers in Genesis, Inc. v. Creation
Ministries Int'l, Ltd., 556 F.3d 459, 465 (6th
Cir.2009) (“[F]ederal courts have a duty to consider
their subject matter jurisdiction in regard to every case and
may raise the issue sua sponte.”). Under Rule
12(h)(3) of the Federal Rules of Civil Procedure, “[i]f
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Hayes v. Shelby Cty. Tr., 971 F.Supp.2d 717, 725-26
(W.D. Tenn. 2013).
complaint appears to assert the existence of federal question
jurisdiction. (Doc. 1-1 at 1). Under 28 U.S.C. §1331,
federal question jurisdiction exists over “all civil
actions arising under the Constitution, laws, or treaties of
the United States.” Plaintiff submitted his complaint
on a form typically used to allege violations of civil rights
under 42 U.S.C. §1983. However, it does not appear that
the sole individual Defendant, identified as the Executive
Director of the Northern Kentucky Homeless Cold Shelter, is
employed by the State of Ohio or other governmental entity,
which would give rise to a civil rights claim under 42 U.S.C.
only other possible basis for jurisdiction, which is not
alleged by Plaintiff, would be diversity jurisdiction under
28 U.S.C. § 1332. A prerequisite for the exercise of
diversity jurisdiction is the diverse citizenship of the
parties. Here, however, it is apparent from the face of the
complaint that Plaintiff and Defendant both reside in the
Commonwealth of Kentucky.
complaint makes clear that Plaintiff is seeking monetary
compensation for lost “packages” that allegedly
were misdelivered to an employee of the shelter facility for
which the Defendant serves as Executive Director. Plaintiff
explains that on December 20, 2019, his insurance company
informed him that items that he had paid for had been
delivered by a U.P.S. driver to 634 Scott Boulevard in
Covington, Kentucky on December 14, 2019, where an employee
by the name of “Malone” signed for the packages.
The Court infers that the shelter for which the Defendant
serves as Executive Director is located at the referenced
address, which the undersigned further infers is physically
located near Plaintiff's residence. Plaintiff alleges
that he went to the shelter and requested his packages, but a
“black female employee” told him that the shelter
did not have his packages. The complaint recounts what
So I said according to (“U.P.S.) driver you guys let
him in and he went to the front-desk and Somebody named
(Malone) signed for it, so now she tells me there's no
employee by the name (Malone) that works here. So I said
“Miss” my insurance company sent the packages ...