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). 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

TODD ALEXANDER BLANK, §

(Tarrant # 0337992) §

 § CIVIL ACTION NO.4:05-CV-604-Y VS. 

§

 §

FEDERAL EXPRESS §

CORPORATION, et al. §

 

 OPINION and ORDER OF DISMISSAL 

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

 

Plaintiff Todd Alexander Blank, 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). Blank initiated this action with the filing, on September

22, 2005, of a form civil-rights complaint seeking relief under 42

U.S.C. § 1983. Blank names as defendants Federal Express Corporation, Crawford and Company, Ace America Insurance Company, and

Linda Jo Lopez. (Compl. Style; ¶ IV(B).) Blank alleges that on May

21, 2005, the vehicle in which he was a passenger was “slammed

into” by a Federal Express truck driven by Linda Jo Lopez. (Compl.

§ V.) Blank seeks damages of $750,000. (Compl. § VI.) 

 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

 

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

4Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

5See 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).

2

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 A district court is not required to await a

responsive pleading to conduct its § 1915 inquiry.3 Rather, § 1915

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

meritless legal theory.”4 After review and consideration of Blank’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

of law.5 Blank has failed to satisfy the first element. Blank has

not alleged that any defendant violated a constitutional or federal

right, and the listed factual allegations do not state such a claim.

Also, Blank has failed to allege facts to show that any defendant

acted under color of law. Thus, Blank’s claims asserted through 42

 

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6See 28 U.S.C. § 1332(a)(1)(West 1993 and West Supp. 2005).

7See Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992), citing

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

3

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 Blank 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

Blank 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. 

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.6 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.7

 Although

Plaintiff listed out-of-state addresses for two of the corporate

 

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4

defendants, he listed a Texas address for himself, and a Keller,

Texas address for individual defendant Linda Jo Lopez. Blank 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. 

Therefore, all claims under 42 U.S.C. § 1983 are hereby

DISMISSED WITH PREJUDICE to their being refiled under authority of

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

To the extent Plaintiff asserts other claims, they are

DISMISSED WITH PREJUDICE to the right to refile in federal court for

lack of subject matter jurisdiction. 

 SIGNED October 27, 2005.

 

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