1This is Alvin Alexander’s third of four suits recently filed in this

Court. The others are styled as: Alexander v. Alexander, et al. , No.4:05-CV-419-

Y, Alexander v. Oak Hollow Apartments, et al., No.4:05-CV-438-Y, and Alexander

v. Barr, No.4:05-CV-488-A. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ALVIN ALEXANDER, §

(Tarrant # 0433873) §

 § CIVIL ACTION NO.4:05-CV-475-Y VS. 

§

 §

JP MORGAN ELECTRONIC § 

FINANCIAL SERVICES, Inc. §

 OPINION and ORDER OF DISMISSAL

 UNDER 28 U.S.C. § 1915(e)(2)(B)(i) and (ii)

Plaintiff Alvin Alexander, an inmate presently housed at the

Tarrant County jail, was permitted by the magistrate judge to

proceed herein pursuant to 28 U.S.C. § 1915, with the filing fee to

be collected as required by the Prison Litigation Reform Act

(PLRA). Alexander initiated this action with the filing, on July

26, 2005, of a form civil rights complaint seeking relief under 42

U.S.C. § 1983.1 Alexander names as defendant JP Morgan Electronic

Financial Services, Inc. (“JP Morgan”)(Compl. Style; ¶ IV(B).) In

his complaint, Alexander alleges that on two separate occasions,

fist in 2001 and then in April 2005, money he received into an

account with JP Morgan from the Social Security Administration was

removed without his consent. (Compl. § V.) Alexander alleges that

in 2001 the loss was $2,048, and in April 2005 the loss was $579.

(Compl. § V.) He seeks compensation in monetary damages for these

amounts.(Compl. § VI.) 

 

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2Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)

requires dismissal not only when an allegation of poverty is untrue or the action

is frivolous or malicious, but also when “the action . . . fails to state a

claim on which relief may be granted; or seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(A) and

(B)(West Supp. 2005). 

3See 28 U.S.C.A. § 1915(e)(2)(West Supp. 2005); Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th

Cir. 1990)(discussing authority to dismiss at any time under prior § 1915(d)).

4See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

5Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

2

 A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.2 Under 28

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

in determining at any time whether an in-forma-pauperis claim

should be dismissed.3 A district court is not required to await a

responsive pleading to conduct its § 1915 inquiry.4 Rather, § 1915

gives judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”5 After review and consideration of

Alexander’s claims in this suit, the Court finds that they must be

dismissed under the authority of 28 U.S.C. §§ 1915(e)(2)(B)( i) and

(ii).

In order to assert a claim for damages for violation of federal

constitutional rights under 42 U.S.C. § 1983, a plaintiff must set

forth facts in support of both of its elements: (1) the deprivation

of a right secured by the Constitution or laws of the United States;

and (2) the deprivation was imposed by a person acting under color

 

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6See West v. Atkins, 487 U.S. 42, 48 (1988)(citing cases); Resident Council

of Allen Parkway Village v. U.S. Department of Housing and Urban Development, 980

F.2d 1043, 1050 (5th Cir.), cert. denied, 510 U.S. 820 (1993).

3

of law.6 Alexander’s allegations in this complaint fail to satisfy

the first element. Alexander has not alleged that JP Morgan

Electronic Financial Services, Inc. violated a constitutional or

federal right, and the listed factual allegations do not state such

a claim. Also, Alexander has failed to allege facts to show that

the defendant acted under color of law. Thus, Alexander’s claims

asserted through 42 U.S.C. § 1983 against defendant JP Morgan must

be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii). 

 In addition to failing to satisfy the elements to pursue a

claim under 42 U.S.C. § 1983, the Court determines that Alexander

has otherwise failed to properly invoke any basis for this Court to

exercise jurisdiction over the subject matter of this case. The

general rule is that a federal court obtains jurisdiction over

subject matter only if the elements necessary to constitute

diversity of citizenship are present under 28 U.S.C. § 1332, or if

the cause of action arises under the Constitution, laws or treaties

of the United States under 28 U.S.C. § 1331. Because plaintiff

Alexander has not alleged any claim for relief under the Constitution or laws of the United States, he has not invoked the Court's

federal-question jurisdiction. Also, in order to properly invoke

diversity jurisdiction, a plaintiff must allege that the amount in

controversy exceeds $75,000, and that he is a citizen of one state

 

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7See 28 U.S.C. § 1332(a)(1)(West 1993 and West Supp. 2005).

8See Packard v. Provident National Bank, 994 F.2d 1039, 1044-45 (3d Cir.),

cert den’d, 510 U.S. 964 (1993).

9See St. Paul Mercury Indemnity Co. V. Red Cab Co., 303 U.S. 283, 288-89

(1938).

4

and the defendants are citizens of another.7 Alexander has alleged

a Florida address for defendant JPMorgan, and even assuming the

defendant’s citizenship for diversity purposes is based there,

Alexander has failed to establish the amount in controversy. 

The amount-in-controversy provision is to be narrowly

construed, so as not to frustrate congressional purpose.8 The test

to determine whether the amount-in-controversy requirement is

satisfied is the “legal certainty” test; to justify dismissal, it

must appear to a legal certainty that a plaintiff’s claim is for

less than the statutory amount.9 Alexander has alleged a loss of

a total amount of $2627. Because the Court can say with a legal

certainty that the plaintiff cannot recover an amount in excess of

$75,000, he has failed to invoke this Court's diversity jurisdiction. Thus, any other claims must be dismissed for lack of subject

matter jurisdiction. 

It is therefore ORDERED that all claims under 42 U.S.C. § 1983

be, and they are hereby, DISMISSED WITH PREJUDICE under authority

of 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii). 

It is further ORDERED that to the extent Plaintiff's asserts

 

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5

other claims, they are hereby DISMISSED WITH PREJUDICE to the right

to refile in federal court for lack of subject matter jurisdiction.

 SIGNED August 3, 2005.

 

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