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

JOHN WAYNE RASMON, §

§

 § CIVIL ACTION NO.4:05-CV-809-Y VS. 

§

 §

MID AMERICA STATES, §

Commissary, Tarrant County Jail §

OPINION and ORDER OF DISMISSAL UNDER 

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

This case is before the Court for review of pro-se inmate and

plaintiff John Wayne Rasmon’s case under the review provisions of

28 U.S.C. § 1915(e)(2)(B). Rasmon initiated this suit while housed

in the Tarrant County jail with the filing of a form civil-rights

complaint on December 16, 2005. He names as defendant Mid America

States, identified as the commissary company for the jail. (Compl.

Style; § V.) Rasmon claims that the defendant is selling “bad

emersion heaters by the dozens,” that his was “confiscated,” that

the products are “overpriced,” and that “they don’t guarantee the

products they sell, all inmates are having to pay outrageous

prices.” (Compl. § V.) Rasmon seeks to have everyone who bought

an emersion heater between certain dates to be paid back. (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

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

 

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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).

6See Cornish v. Correctional Services Corp., et al., 402 F.3d 545, 550 

(5th Cir. 2005)(noting that under any of the many tests employed to decide

whether a private actor’s conduct can be fairly attributable to the State is a

“necessarily fact-bound inquiry . . . .”) citing, Lugar v. Edmondson Oil Co., 457

U.S. 922, 939 (1982).

2

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 Rasmon’s

claims in this suit, the Court concludes 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 Rasmon has failed to satisfy the first element. Rasmon has

not alleged that defendant Mid America States violated a

constitutional or federal right, and the listed factual allegations

do not state such a claim. Also, Rasmon has failed to allege facts

to show that Defendant acted under color of law with regard to the

specific events made the basis of this suit.6 Thus, Rasmon’s claims

 

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

3

asserted through 42 U.S.C. § 1983 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 Rasmon 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

Rasmon 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 Plaintiff has not

identified an address for defendant Mid America States other than

the jail address, so the Court lacks information about its corporate

address. Assuming that Mid America States has an out-of-state

location for diversity purposes, Rasmon has failed to set forth

claims sufficient to support the amount-in-controversy requirement.

The amount-in-controversy provision is to be narrowly

 

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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

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 Rasmon has alleged only that he

lost the value of an emersion heater. 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. 

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

DISMISSED WITH PREJUDICE under authority of 28 U.S.C. §§ 1915(e)(2)

(B)(i) and (ii). 

To the extent Plaintiff asserts other claims, they are

DISMISSED for lack of subject matter jurisdiction with prejudice

to the right to refile in fede

ral court.

SIGNED April 27, 2006.

 

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