NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MAURICE GAY, :

: Civil Action No. 10-3983 (FSH)

Plaintiff, :

:

v. : OPINION

:

WAKEFERN FOOD CORPORATION, :

:

Defendant. :

APPEARANCES:

Plaintiff pro se

Maurice Gay

Trenton State Prison

P.O. Box 861

Trenton, NJ 08625

HOCHBERG, District Judge

Plaintiff Maurice Gay, a prisoner currently confined at

Trenton State Prison in Trenton, New Jersey, seeks to bring this

action in forma pauperis pursuant to 42 U.S.C. § 1983. Based on

his affidavit of indigence and the absence of three qualifying

dismissals within 28 U.S.C. § 1915(g), the Court will grant

Plaintiff’s application to proceed in forma pauperis pursuant to

28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to

file the Complaint.

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I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

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

Plaintiff alleges that on or about June 15, 2010, while

incarcerated at Trenton State Prison, he received a carton of

strawberry-banana yogurt, distributed by Wakefern Food

Corporation, that was “bad” and made him physically ill for two

or three days.

Plaintiff asserts jurisdiction under 42 U.S.C. § 1983. He

names as the sole defendant Wakefern Food Corporation of

Elizabeth, New Jersey, and he seeks damages for pain and

suffering, mental anguish, and embarrassment in the total amount

of $40,000.

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). 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 Plaintiff asserts that his claims arise

under 42 U.S.C. § 1983, thus invoking § 1331 federal-question

jurisdiction, the facts pleaded by him reveal no claim arising

under § 1983.

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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 Plaintiff’s action, however, is that the

defendant distributed “bad” yogurt. 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

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

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

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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)).

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

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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, Plaintiff alleges no facts

that would permit this Court to find that Wakefern Food

Corporation acted under color of state law within the meaning of

§ 1983 when it distributed its yogurt.

Thus, it does not appear that this Court can exercise

jurisdiction over this action under § 1331.

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B. 28 U.S.C. § 1332

Although Plaintiff does 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). In particular, if a sole plaintiff and any one

of several defendants are citizens of the same state, complete

diversity is lacking and the action would have to be dismissed

for lack of jurisdiction. Id.

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

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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 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

Plaintiff has listed a New Jersey address for Wakefern Food

Corporation, he has failed to allege either that Wakefern Food

Corporation is incorporated in New Jersey or that it has its

principal place of business in New Jersey.

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

inmate plans to live elsewhere when he is released in which event

citizenship would be that state.” McCracken, 328 F.Supp.2d at

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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 Jersey is not sufficient, of itself, to establish

citizenship in New Jersey.

Finally, the claimed damages amount to only $40,000, so the

claim does not reach the required jurisdictional amount of

$75,000. For all the foregoing reasons, diversity jurisdiction

is lacking. 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).

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

can discern no basis for asserting jurisdiction over this action. 

III. CONCLUSION

For the foregoing reasons, this Court will dismiss this

action for lack of subject matter jurisdiction. As Plaintiff has

plead damages less than the required jurisdictional amount, it

does not appear that he can cure the lack of diversity

jurisdiction under 28 U.S.C. § 1332. Nevertheless, if Plaintiff

can plead facts sufficient to demonstrate that this Court has

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subject matter jurisdiction to entertain this action under 28

U.S.C. § 1331, he may move to re-open this action. Any such

motion must be accompanied by a proposed amended complaint

asserting the appropriate jurisdictional facts.

An appropriate order follows.

s/ Faith S. Hochberg 

Faith S. Hochberg

United States District Judge

DATED: May 24, 2011 

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