UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARCUS PEREZ, :

: Civil Action No. 10-6586 (RBK)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

ATLANTIC CARE HOSPITAL, :

:

Defendant. :

APPEARANCES:

Plaintiff pro se

Marcus Perez

DIN # 10-A-5192

Wende Correctional Facility

Wende Road

P.O. Box 1187

Alden, NY 14004-1187

KUGLER, District Judge

Plaintiff Marcus Perez, a prisoner confined at Wende

Correctional Facility in Alden, New York, seeks to bring this

civil action in forma pauperis, without prepayment of fees or

security, asserting claims pursuant to 42 U.S.C. § 1983.

Civil actions brought in forma pauperis are governed by 28

U.S.C. § 1915. The Prison Litigation Reform Act of 1995, Pub. L.

No. 104-135, 110 Stat. 1321 (April 26, 1996) (the “PLRA”), which

amends 28 U.S.C. § 1915, establishes certain financial

requirements for prisoners who are attempting to bring a civil

action or file an appeal in forma pauperis.

Under the PLRA, a prisoner seeking to bring a civil action

in forma pauperis must submit an affidavit, including a statement

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of all assets, which states that the prisoner is unable to pay

the fee. 28 U.S.C. § 1915(a)(1). The prisoner also must submit

a certified copy of his inmate trust fund account statement(s)

for the six-month period immediately preceding the filing of his

complaint. 28 U.S.C. § 1915(a)(2). The prisoner must obtain

this certified statement from the appropriate official of each

prison at which he was or is confined. Id.

Even if the prisoner is granted in forma pauperis status,

the prisoner must pay the full amount of the $350 filing fee in

installments. 28 U.S.C. § 1915(b)(1). In each month that the

amount in the prisoner’s account exceeds $10.00, until the

$350.00 filing fee is paid, the agency having custody of the

prisoner shall assess, deduct from the prisoner’s account, and

forward to the Clerk of the Court an installment payment equal to

20 % of the preceding month’s income credited to the prisoner’s

account. 28 U.S.C. § 1915(b)(2).

Plaintiff may not have known when he submitted his complaint

that he must pay the filing fee, and that even if the full filing

fee, or any part of it, has been paid, the Court must dismiss the

case if it finds that the action: (1) is frivolous or malicious;

(2) fails to state a claim upon which relief may be granted; or

(3) seeks monetary relief against a defendant who is immune from

such relief. 28 U.S.C. § 1915(e)(2)(B) (in forma pauperis

actions). See also 28 U.S.C. § 1915A (dismissal of actions in

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which prisoner seeks redress from a governmental defendant); 42

U.S.C. § 1997e (dismissal of prisoner actions brought with

respect to prison conditions). If the Court dismisses the case

for any of these reasons, the PLRA does not suspend installment

payments of the filing fee or permit the prisoner to get back the

filing fee, or any part of it, that has already been paid.

If the prisoner has, on three or more prior occasions while

incarcerated, brought in federal court an action or appeal that

was dismissed on the grounds that it was frivolous or malicious,

or that it failed to state a claim upon which relief may be

granted, he cannot bring another action in forma pauperis unless

he is in imminent danger of serious physical injury. 28 U.S.C.

§ 1915(g).

In this action, Plaintiff failed to submit a complete in

forma pauperis application as required by 28 U.S.C. § 1915(a)(1),

(2), including a certified account statement. See, e.g., Tyson

v. Youth Ventures, L.L.C., 42 Fed.Appx. 221 (10th Cir. 2002);

Johnson v. United States, 79 Fed.Cl. 769 (2007).

In addition, it is not clear that this Court can exercise

jurisdiction over Plaintiff’s claims. 

Federal Rule of Civil Procedure 8(a) requires the plaintiff

in a federal action to set forth “a short and plain statement of

the grounds upon which the court’s jurisdiction depends.” Here,

Plaintiff has made no such jurisdictional statement.

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Federal courts are bound to determine whether they have

jurisdiction even if none of the parties to an action have

challenged the asserted bases therefor. Packard v. Provident

National Bank, 994 F.2d 1039 (3d Cir.), cert. denied sub nom. Upp

v. Mellon Bank, N.A., 510 U.S. 964 (1993); Temple Univ. v. White,

941 F.2d 201 (3d Cir. 1991), cert. denied sub nom. Snider v.

Temple Univ., 502 U.S. 1032 (1992); TM Marketing, Inc. v. Art &

Antiques Assocs., L.P., 803 F. Supp. 994 (D.N.J. 1992). If

jurisdiction is lacking, the court must dismiss the action,

regardless of the stage of the litigation. Trent Realty Assocs.

v. First Federal Sav. & Loan Ass’n, 657 F.2d 29, 36 (3d Cir.

1981); TM Marketing, supra, 803 F. Supp. at 997; Carney v. Dexter

Shoe Co., 701 F. Supp. 1093, 1100 (D.N.J. 1988). A court can

take no measures to rectify a want of jurisdiction, because the

lack of jurisdiction itself precludes asserting judicial power. 

See First American Nat’l Bank v. Straight Creek Processing Co.,

756 F. Supp. 945 (E.D. Va. 1991) (where diversity of parties is

incomplete, court has no jurisdiction to consider plaintiff’s

motion to dismiss non-diverse defendants; rather, court must

dismiss action for lack of jurisdiction).

Plaintiff has asserted no facts suggesting a basis for this

Court to exercise federal question jurisdiction under 28 U.S.C.

§ 1331. The claim cannot be construed as a claim under 42 U.S.C.

§ 1983. A plaintiff may have a cause of action under 42 U.S.C.

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§ 1983 for certain violations of his constitutional rights. 

Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress ... .

Thus, to state a claim for relief under § 1983, a plaintiff must

allege, first, the violation of a right secured by the

Constitution or laws of the United States and, second, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.

1994). Plaintiff has alleged no facts suggesting that the

defendants are state actors, and Plaintiff does not allege the

violation of a federal statutory or constitutional right.

Nor are any facts alleged suggesting that the defendants

federal officers or employees. Accordingly, there is no basis

for asserting jurisdiction under the Federal Tort Claims Act, 28

U.S.C. §§ 1346(b), 2671 et seq., or Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971).

The facts asserted here suggest only a state-law tort claim

for medical malpractice. Plaintiff does not allege jurisdiction

based upon diversity of citizenship under 28 U.S.C. § 1332,

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however, and the facts alleged do not establish a basis for

diversity jurisdiction. Section 1332 can provide jurisdiction

over state-law claims if, in the provision pertinent here, such

claims are between “citizens of different States.” A plaintiff,

as the party asserting federal jurisdiction, “must specifically

allege each party’s citizenship, and these allegations must show

that the plaintiff and defendant are citizens of different

states.” American Motorists Ins. Co. v. American Employers’ Ins.

Co., 600 F.2d 15, 16 (5th Cir. 1979); see also Universal

Reinsurance Co., Ltd. v. St. Paul Fire & Marine Ins. Co., 224

F.3d 139, 141 (2d Cir. 2000) (“The failure to allege [the

party’s] citizenship in a particular state is fatal to diversity

jurisdiction”). Here, however, Plaintiff alleges no facts that

would permit this Court to determine either his citizenship or

the citizenship of the individual defendants.1

A corporation is “deemed to be a citizen of any State by

which it has been incorporated and of the State where it has its

principal place of business.” 28 U.S.C. § 1332(c). Thus, it

appears that Atlantic Care Hospital may be a citizen of New

Jersey.

 Plaintiff alleges claims against Atlantic Care Hospital 1

and “its board of directors, every member separately and

individually by whatsoever names they use.” However, Plaintiff

fails, in the body of the Complaint, to provide any identifying

information or any information regarding the citizenship(s) of

the individual defendants.

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Specifically with respect to individuals, however, 

For purposes of determining diversity, state

citizenship is equated with domicile. Domicile,

however, is not necessarily synonymous with residence;

one can reside in one place and be domiciled in

another. Residence and an intent to make the place of

residence one’s home are required for citizenship and

to establish a new domicile. Although the analysis is

necessarily case specific, courts have looked to

certain factors, including state of employment, voting,

taxes, driver’s license, bank accounts and assets, and

civic and religious associations in determining the

citizenship of an individual. ...

McCracken v. Murphy, 328 F.Supp.2d 530, 532 (E.D. Pa. 2004)

(citations omitted), aff’d, 129 Fed.Appx. 701 (3d Cir. 2005). 

Plaintiff has alleged no facts regarding the citizenship of the

individual defendants.

 “For inmates, citizenship for diversity purposes is the

state in which the inmate was domiciled prior to incarceration,

unless the inmate plans to live elsewhere when he is released in

which event citizenship would be that state.” McCracken, 328

F.Supp.2d at 532 (citing Flanagan v. Shively, 783 F.Supp. 922,

935 (E.D. Pa.), aff’d, 980 F.2d 722 (3d Cir. 1992)). Plaintiff

has alleged no facts regarding his own citizenship. The fact of

incarceration in New York is not sufficient, of itself, to

establish citizenship in New York.

The Court is mindful that Plaintiff appears here as a pro se

plaintiff and therefore his complaint is to be held to less

stringent standards than formal pleadings drafted by lawyers. 

Haines v. Kerner, 404 U.S. 519 (1972). Nonetheless, the Court

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can discern no basis, at present, for asserting jurisdiction over

this action. “The person asserting jurisdiction bears the burden

of showing that the case is properly before the court at all

stages of the litigation.” Packard v. Provident Nat’l Bank,

supra, 994 F.2d at 1045. For a court properly to assume

jurisdiction over an action under § 1332, complete diversity must

be apparent from the pleadings. Neat-N-Tidy Co., Inc. v.

Tradepower (Holdings) Ltd., 777 F. Supp. 1153 (S.D.N.Y. 1991)

(complaint dismissed for lack of diversity jurisdiction where

corporate plaintiff failed to allege its own and defendant

corporation’s principal places of business). Thus, in the

present case, where the complaint fails to assert facts

suggesting either federal-question or diversity jurisdiction,

dismissal without prejudice for lack of jurisdiction would be

proper. See Joyce v. Joyce, 975 F.2d 379 (7th Cir. 1992)

(affirming district court’s sua sponte dismissal for lack of

subject-matter jurisdiction where jurisdictional defect was

incurable).

As this case will be administratively terminated because the

application for leave to proceed in forma pauperis is deficient,

this Court need not determine the jurisdictional question at this

time. However, in any motion to re-open this matter, the

Plaintiff must assert facts establishing jurisdiction in this

Court.

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The allegations of the Complaint do not suggest that

Plaintiff is in imminent danger of serious physical injury.

CONCLUSION

For the reasons set forth above, Plaintiff’s application for

leave to proceed in forma pauperis will be denied without

prejudice and the Clerk of the Court will be ordered to

administratively terminate this action, without filing the

complaint or assessing a filing fee. Plaintiff will be granted

leave to move to re-open within 30 days.2

An appropriate Order will be entered.

s/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: January 20, 2011 

 Such an administrative termination is not a “dismissal” 2

for purposes of the statute of limitations, and if the case is

reopened pursuant to the terms of the accompanying Order, it is

not subject to the statute of limitations time bar if it was

originally filed timely. See Houston v. Lack, 487 U.S. 266

(1988) (prisoner mailbox rule); McDowell v. Delaware State

Police, 88 F.3d 188, 191 (3d Cir. 1996); see also Williams-Guice

v. Board of Education, 45 F.3d 161, 163 (7th Cir. 1995).

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