COLLINS v. COUNTY OF JOHNSON, (D.Kan. 2001)

JOHN W. LUNGSTRUM, United States District Court Judge

William P. Collins, proceeding pro se, filed this action alleging false arrest, malicious prosecution, ineffective assistance of counsel and "unethical behavior." Multiple defendants filed motions to dismiss: Charles Harvey (Doc. 10), Melinda Whitman (Doc. 14), Judge McAnany (Doc. 18) and "D.A. defendants" and the state of Kansas (Doc. 20). The arguments raised in the motions include lack of subject matter jurisdiction, that the suit is barred by the Rooker-Feldman doctrine, immunity, failure to join an essential party and improper service of process. The plaintiff filed a motion requesting default judgment be entered against three defendants and that a trial date be set (Doc. 33) and filed an amended motion requesting the same (Doc. 34).

At the outset, the court must decide if it has subject matter jurisdiction over the case. A federal court must "satisfy itself of subject matter jurisdiction before proceeding to the merits of a claim — even when the question of the merits is the easier one and is substantively resolvable against the claim over which jurisdiction is in doubt." Gold v. Local 7 United Food and Commercial Workers Union, 159 F.3d 1307, 1309 (10th Cir. 1998); see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (rejecting the doctrine of "hypothetical jurisdiction" that enables a court to resolve contested questions of law when its jurisdiction is in doubt).

Federal courts have jurisdiction over cases between citizens of different states and over cases arising under the Constitution and laws of the United States. 28 U.S.C. § 1331, 1332. The complaint does not allege diversity of citizenship and the pleadings suggest that the parties are all residents of Kansas. Thus, the court must determine if the plaintiff's claims "arise under" the Constitution or federal law. A case "arises under" the Constitution or federal law when "a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff''s right to relief depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Federal question jurisdiction "must appear on the face of a plaintiff's well-pleaded complaint." Martinez v. United States Olympic Committee, 802 F.2d 1275, 1280 (10th Cir. 1986). "The complaint must identify the statutory or constitutional provision under which the claim arises, and allege sufficient facts to show that the case is one arising under federal law." Id. While the facts alleged by Mr. Collins potentially support claims arising under the Constitution and federal laws, the complaint does not identify statutory or constitutional provisions under which the claims arise.

Because Mr. Collins is proceeding without the assistance of counsel, the court must construe the complaint liberally. Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). The court, however, must not act as an advocate for the pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). While courts are lenient in finding that a pro se plaintiff's complaint establishes subject matter jurisdiction, see Streater v. Helmet Valley Hospital/Medical Center, 1992 WL 45775 (9th Cir. March 4, 1992) ("Although Streater does not specifically state a statutory basis for his claims, liberally construing his complaint, we find that his claim of employment discrimination based on race, together with his reference to Jackson v. Southern Cal. Gas Co., 881 F.2d 638 (9th Cir. 1989), a case dealing with a federal claim of racial discrimination, are a sufficient assertion of jurisdiction to overcome dismissal of the action under Fed.R.Civ.P. 12(h)(3)"), it would be improper for the court to simply speculate about what federal laws or constitutional violations could support a cause of action based on the facts alleged in the complaint. Because the complaint does not indicate the laws or constitutional provisions under which the claims arise, Mr. Collins fails to establish subject matter jurisdiction. The court, therefore, directs the plaintiff to file an amended complaint by July 31, 2001, identifying the statutory or constitutional provisions under which his claims arise or, if diversity exists, alleging diversity of citizenship. Should the plaintiff fail to file such an amended complaint by that date, the court will dismiss the cause of action for lack of subject matter jurisdiction.

IT IS THEREFORE ORDERED that the plaintiff is granted leave to file an amended complaint by July 31, 2001, and the court retains under advisement the motions to dismiss filed by Charles Harvey (Doc. 10), Melinda Whitman (Doc. 14), Judge McAnany (Doc. 18) and "D.A. defendants" and the state of Kansas (Doc. 20) and the platintiff's motion requesting default judgment be entered against three defendants and that a trial date be set (Doc. 33) and the amended motion requesting the same (Doc. 34).