NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MAURICE GAY, and :

BERNARD JENKINS, :

: Civil Action No. 11-4303 (PGS)

Plaintiffs, :

:

v. : OPINION

:

DIAMOND CRYSTAL BRAND, INC., :

:

Defendant. :

APPEARANCES:

Plaintiffs pro se

Maurice Gay

Bernard Jenkins

Trenton State Prison

P.O. Box 861

Trenton, NJ 08625

SHERIDAN, District Judge

Plaintiff Maurice Gay and Bernard Jenkins, prisoners

confined at Trenton State Prison in Trenton, New Jersey, seek to

bring this action in forma pauperis pursuant to 42 U.S.C. § 1983,

alleging violations of his constitutional rights. 

1

 This matter was previously administratively terminated for 1

Plaintiffs’ failure either to prepay the filing fee or to submit

applications for leave to proceed in forma pauperis. Plaintiffs

have cured these defects by each submitting an application for

leave to proceed in forma pauperis. Based on their affidavits of

indigence, and the absence of three disqualifying dismissals

within 28 U.S.C. § 1915(g), the Court will order the Clerk of the

Court to re-open this action, will grant the applications for

leave to proceed in forma pauperis, and will order the Clerk of

the Court to file the Complaint.

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At this time, the Court must review the Complaint to

determine whether it should be dismissed as frivolous or

malicious, for failure to state a claim upon which relief may be

granted, or because it seeks monetary relief from a defendant who

is immune from such relief, or for any other reason under

applicable statutes and rules.

I. BACKGROUND

The following factual allegations are taken from Plaintiffs’

Complaint and are accepted as true for purposes of this review.

Plaintiffs allege that Defendant Diamond Crystal Brand,

Inc., distributed bad peanut butter to them which caused them to

become ill on June 18, 2011. Each Plaintiff seeks damages in the

amount of $40,000, for total damages of $80,000.

II. ANALYSIS

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.” 

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 &

2

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

“a plaintiff, suing in a federal court, must show in his

pleading, affirmatively and distinctly, the existence of whatever

is essential to federal jurisdiction, and, if he does not do so,

the court ... must dismiss the case, unless the defect be

corrected by amendment.” Smith v. McCullough, 270 U.S. 456, 459

(1926). 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 nondiverse defendants; rather, court must dismiss action for lack of

jurisdiction). As explained more fully below, this Complaint

does not meet the requirements either for federal-question

jurisdiction under 28 U.S.C. § 1331 or for diversity jurisdiction

under 28 U.S.C. § 1332.

A. 28 U.S.C. § 1331

Pursuant to 28 U.S.C. § 1331, Congress has established

jurisdiction in the federal district courts over “all civil

actions arising under the Constitution, laws, or treaties of the

United States.” Although Plaintiffs assert that their claims

arise under 42 U.S.C. § 1983, thus invoking § 1331 federal3

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question jurisdiction, the facts pleaded reveal no claim arising

under § 1983.

More specifically, 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). The basis of Plaintiffs’ action, however, is that the

defendant distributed “bad” peanut butter. This does not state a

claim for a violation of a right secured by the Constitution or

law of the United States. 

In addition, "the under-color-of-state-law element of § 1983

excludes from its reach ‘merely private conduct, no matter how

discriminatory or wrongful.’" American Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50 (1999) (citations omitted). 

Nevertheless, "the deed of an ostensibly private organization or

individual" at times may demand to be treated "as if a State has

4

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caused it to be performed." Brentwood Academy v. Tennessee

Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001). 

Specifically, "state action may be found if, though only if,

there is such a ‘close nexus between the State and the challenged

action’ that seemingly private behavior ‘may be fairly treated as

that of the State itself.’" Id. (quoting Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 351 (1974)).

The "under color of state law" requirement of 42 U.S.C.

§ 1983 has been treated identically to the "state action"

requirement of the Fourteenth Amendment. See Mark v. Borough of

Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995), cert. denied 516 U.S.

858 (1995) (citing United States v. Price, 383 U.S. 787, 794 n.7

(1966); Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982);

Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). State action

exists under § 1983 only when it can be said that the government

is responsible for the specific conduct of which a plaintiff

complains. Mark, 51 F.3d at 1141-42. "Put differently, deciding

whether there has been state action requires an inquiry into

whether ‘there is a sufficiently close nexus between the State

and the challenged action of [the defendants] so that the action

of the latter may fairly be treated as that of the State

itself.’" Id. at 1142 (quoting Blum v. Yaretsky, 457 U.S. 991,

1004 (1982)).

5

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A private entity can be sued under § 1983 where (1) it "has

exercised powers that are traditionally the exclusive prerogative

of the State, Mark, 51 F.3d at 1142; (2) the State and the

private party act in concert or jointly to deprive a plaintiff of

his rights, Adickes v. S.H. Kress & Co., 398 U.S. 144, 170-171

(1970); (3) the State has permitted a private party to substitute

his judgment for that of the State, Cruz v. Donnelly, 727 F.2d

79, 81-82 (3d Cir. 1984); or (4) the private party and the State

have a symbiotic relationship as joint participants in the

unconstitutional activity, Edmonson v. Leesville Concrete Co.,

Inc., 500 U.S. 614, 620 (1991); Mark, 51 F.3d at 1143. See also

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S.

189 (1989) (Fourteenth Amendment's "purpose was to protect the

people from the State, not to ensure that the State protected

them from each other"); Van Ort v. Estate of Stanewich, 92 F.3d

831, 835 (9th Cir. 1996) ("Individuals . . . have no right to be

free from infliction of [constitutional] harm by private

actors"), cert. denied , 519 U.S. 1111 (1997); Jones v. Arbor,

Inc., 820 F. Supp. 205, 208 (E.D. Pa. 1993) (plaintiff did not

allege that defendant corporation was a state actor or had such a

symbiotic relationship with the state so as effectively to be an

instrumentality of the state). Here, Plaintiffs allege no facts

that would permit this Court to find that Defendant Diamond

6

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Crystal Brand, Inc., acted under color of state law within the

meaning of § 1983 when it distributed peanut butter.

Thus, the facts as alleged do not support this Court in

exercising jurisdiction over this action under § 1331.

B. 28 U.S.C. § 1332

Although Plaintiffs do not allege jurisdiction based upon

diversity of citizenship under 28 U.S.C. § 1332; this Court will

consider whether it can exercise jurisdiction under that

provision.

Section 1332 can provide jurisdiction over state-law civil

actions if, in the provision pertinent here, the matter in

controversy exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between “citizens of different

States.” It has long been recognized that, to found jurisdiction

upon § 1332, there must be complete diversity among all parties,

i.e., each plaintiff must be a citizen of a different state from

each defendant. Owen Equipment and Erection Co. v. Kroger, 437

U.S. 365 (1978).

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 &

7

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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, Plaintiffs

allege no facts that would permit this Court to determine either

their citizenship(s) or the citizenship of the defendant.

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). Although

Plaintiffs have listed a Georgia address for Defendant Diamond

Crystal Brand, Inc., they have failed to allege either that

Diamond Crystal Brand, Inc., is incorporated in Georgia, and not

in New Jersey, or that it has its principal place of business in

Georgia.

Specifically with respect to individuals, in addition, 

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). 

“For inmates, citizenship for diversity purposes is the state in

which the inmate was domiciled prior to incarceration, unless the

8

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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)). Plaintiffs have alleged no

facts regarding their own citizenship(s). The fact of

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

establish citizenship in New Jersey. For all the foregoing

reasons, diversity jurisdiction is lacking.

The Court is mindful that Plaintiffs appear here pro se and

therefore their 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 can discern

no basis for asserting jurisdiction over this action. 

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed without prejudice for lack of jurisdiction. However, 2

because it is conceivable that Plaintiffs may be able to

supplement their pleading with facts sufficient to demonstrate

 The Court notes that “‘[g]enerally, an order which 2

dismisses a complaint without prejudice is neither final nor

appealable because the deficiency may be corrected by the

plaintiff without affecting the cause of action.’ ... The

dispositive inquiry is whether the district court’s order finally

resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d

Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951

(3d Cir. 1976)) (other citations omitted). In this case, if

Plaintiff can correct the deficiencies of his Complaint, he may

file a motion to re-open these claims in accordance with the

court rules.

9

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that this Court has jurisdiction, this Court will permit

Plaintiffs to move to re-open, attaching to any such motion a

proposed amended complaint clearly stating facts establishing

jurisdiction in this Court. An appropriate Order follows.

s/Peter G. Sheridan 

Peter G. Sheridan, U.S.D.J. 

Dated: February 2, 2012

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