United States District Court, E.D. Pennsylvania
July 27, 2004.
JAIME KHAMBA, Plaintiff,
VERIZON (BELL ATLANTIC), Defendant.
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
Plaintiff pro se Jaime Khamba requests leave to file a civil
action in forma pauperis against his telephone service provider
Verizon. Plaintiff alleges that Verizon owed him a credit of
approximately $270 but never issued him a check for this credit.
(Compl. at 2-6.) Instead, Verizon allegedly applied this balance
to Plaintiff's outstanding long-distance bill, which he claims
was calculated in error. (Id.) Plaintiff appears to assert
federal question jurisdiction for claims brought under
28 U.S.C. § 1983, as well as unspecified diversity jurisdiction. (Id. at
When a plaintiff files for leave to proceed in forma pauperis,
the district court "assesses the complaint . . . to determine
whether it is frivolous" pursuant to 28 U.S.C. § 1915(e). Roman
v. Jeffes, 904 F.2d 192, 194 n. 1 (3d Cir. 1990) (citing
Sinwell v. Shapp, 536 F.2d 15 (3d Cir. 1976)). A district court
may dismiss a claim as frivolous if it is "based on an
indisputably meritless legal theory," Neitzke v. Williams,
490 U.S. 319, 327 (1989), such as where it is "readily apparent that
the plaintiff's complaint lacks an arguable basis in law."
Roman, 904 F.2d at 194; see also Deutsch v. United States,
67 F.3d 1080, 1085 (3d Cir. 1995).
In this case, Plaintiff's legal allegations are indisputably
meritless because the Court lacks jurisdiction over them.
Diversity jurisdiction does not exist because the amount in
controversy is approximately $270. See 28 U.S.C. § 1332(a) (setting
jurisdictional minimum of $75,000); see also Cellucci/Hodgkinson
v. Jacoby &Myers Law Firm, Civ. No. 98-6094, 1998 WL 808608, at
*1, 1998 U.S. Dist. LEXIS 18644, at *1-2 (E.D. Pa. Nov. 23, 1998)
(dismissing complaint seeking $17,000 in damages as frivolous
under § 1915); Flagg v. Am. Fed'n of State, County, & Mun.
Employees, 1998 WL 472544, at *2, 1998 U.S. Dist. LEXIS 12358,
at *5 (E.D. Pa. July 31, 1998) (dismissing complaint as frivolous
for lack of diversity jurisdiction). Federal question
jurisdiction is absent because Plaintiff asserts no genuine
federal claims, given that a private corporation's failure to
issue a refund to a customer is not state action for the purposes
of 28 U.S.C. § 1983. Guevara v. Metro. Life Ins. Co., Civ. No.
99-2155, 2000 WL 502709, at *4, 2000 U.S. Dist. LEXIS 5428, at
*11 (E.D. Pa. Apr. 26, 2000) (dismissing under § 1915 complaint
alleging constitutional violations by private actors); Messa v.
Allstate Ins. Co., 897 F. Supp. 876, 880-81 (E.D. Pa. 1995)
(same). Thus, Plaintiff's suit is based on indisputably meritless
legal theories, and therefore the Court grants Plaintiff's
request to proceed in forma paupers and dismisses his Complaint
as frivolous pursuant to § 1915(e). An appropriate Order follows. ORDER
AND NOW, this 27th day of July, 2004, upon
consideration of Plaintiff Jaime Khamba's Motion to Proceed in
Forma Pauperis (Document No. 1), it is hereby ORDERED that:
1. Plaintiff's Motion to Proceed in Forma Pauperis is
2. This case is DISMISSED as frivolous pursuant to
28 U.S.C. § 1915(e).
3. The Clerk of Court is directed to close this case.
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