1In the Court’s original opinion and order in this case, the Court

incorrectly listed 28 U.S.C. § 1915A as a source of authority for review and

dismissal of this case. As inmate plaintiff Alexander does not seek relief from

a government entity or an employee or officer of a government entity, § 1915A is

inapplicable. This order VACATES the prior opinion and order. 

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. §

 AMENDED1

 OPINION and ORDER OF DISMISSAL 

 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

 

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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

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

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

 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;

 

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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

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 to show 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. §§ 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

 

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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

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, 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. §§ 1915(e)(2)(B)(i) and (ii). 

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 August 3, 2005.

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

 

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