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-419-Y VS. 

§

 §

MICHELLE DEA ALEXANDER, et al. §

 OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. §§ 1915A(b)(1),

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

 (With special instructions to the clerk of Court)

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 June

29, 2005, of a form civil-rights complaint seeking relief under 42

U.S.C. § 1983. Alexander names as defendants his ex-wife, Michelle

Dea Alexander, and J.P. Morgan Electronic Financial Services, Inc.

(Compl. Style; ¶ IV(B).) In his complaint, Alexander alleges that

after his arrest on unspecified charges, Michelle Alexander lied to

police claiming that she had the right to access his apartment,

whereupon she was given the key to the apartment, entered it, and

took his Mastercard. (Compl. § V.) He also alleges that Michelle

Alexander took his check from the Social Security Administration

and improperly spent the proceeds, $579.00. (Compl. § V.) Alexander

seeks repayment of the $579.00, plus damages. (Compl. § VI.) 

 

 Case 4:05-cv-00419-Y Document 7 Filed 07/27/05 Page 1 of 5 PageID 35
1Neitzke 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). 

2See 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)).

3See 28 U.S.C.A. § 1915A(a)(West Supp. 2005).

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. § 1915.1 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.2 Furthermore, as a part of the PLRA, Congress

enacted 28 U.S.C. § 1915A, which requires the Court to review a

complaint from a prisoner seeking relief from a governmental entity

or governmental officer or employee as soon as possible after

docketing.3 Consistent with § 1915A is prior case law recognizing

that 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. §§ 1915A and 1915(e)(2)

(B).

 

 Case 4:05-cv-00419-Y Document 7 Filed 07/27/05 Page 2 of 5 PageID 36
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

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

of law.6 As to Alexander’s allegations against his ex-wife and the

corporate defendant, he has failed to satisfy the first element.

Alexander has not alleged that either Michelle Alexander or J.P.

Morgan Electronic Financial Services, Inc. violated a constitutional

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

such a claim. Also, as to both of these defendants, Alexander has

failed to allege facts showing that they acted under color of law.

Thus, Alexander’s claims asserted through 42 U.S.C. § 1983 against

these defendants must be dismissed under 28 U.S.C. §§ 1915A(b)(1)

and 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 

 

 Case 4:05-cv-00419-Y Document 7 Filed 07/27/05 Page 3 of 5 PageID 37
7See 28 U.S.C. § 1332(a)(1)(West 1993 and West Supp. 2005).

8See Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992), citing

Strawberry v. Curtiss, 7 U.S. 267 (1806).

4

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

and the defendants are citizens of another.7 Complete diversity of

citizenship is required, and a district court cannot exercise

diversity jurisdiction if the plaintiff shares the same state

citizenship as any one of the defendants.8

 Although Plaintiff

listed a Florida address for the corporate defendant, he listed a

Texas address for himself, and a Texas address for individual

defendant Michelle Alexander. Alexander has not otherwise asserted

any facts to support jurisdiction on the basis of diversity of

citizenship. 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. §§ 1915A(b)(1) and 1915(e)(2)(B)(i) and (ii). 

 

 Case 4:05-cv-00419-Y Document 7 Filed 07/27/05 Page 4 of 5 PageID 38
5

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

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

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

 SIGNED July 27, 2005.

 

 Case 4:05-cv-00419-Y Document 7 Filed 07/27/05 Page 5 of 5 PageID 39