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-438-Y VS. 

§

 §

OAK HOLLOW APARTMENTS, 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 July

8, 2005, of a form civil rights complaint seeking relief under 42

U.S.C. § 1983, along with several attachment pages. Alexander names

as defendants Oak Hollow Apartments, individual Oak Hollow

apartment management employees Timm P. and Jill Pierce, and Rena

Barr. (Compl. Style; ¶ IV(B).) Alexander alleges that on April 4,

2005, Michelle Dae Alexander called the management of his apartment

complex, Oak Hollow apartments, and told them to lease out his

apartment to someone else because he was in jail. (Compl. § V.)

Alexander alleges that his lease did not expire until the end of

 

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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).

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2005, and that his rent was current on April 4, 2005, such that it

was wrong for the complex to “evict him without court order.”

(Compl. § V.) He alleges that although he has written the apartment

complex management staff, he has not received any response. He

also alleges that Rena Barr, his mother-in-law, improperly went

into his apartment without his consent and took some of his things.

(Compl. § V.) Alexander seeks monetary 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

 

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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).

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(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.6 Alexander’s allegations fail to satisfy the first element.

Alexander has not alleged that any defendant 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 any defendant acted under color of law. Thus, Alexander’s

claims 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 Alexander

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

exercise jurisdiction over the subject matter of any other claims

in 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

 

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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).

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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, a district court cannot

exercise diversity jurisdiction if the plaintiff shares the same

state citizenship as any one of the defendants.8 Plaintiff listed

a Texas address for himself, and it appears the individual

defendants are all Texas residents. 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

 

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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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