United States District Court, E.D. Pennsylvania
DAVID A. MACK, Plaintiff,
JAMES R. MACK, Defendant.
R. SANCHEZ, C.J.
se Plaintiff David A. Mack has filed a Complaint against
Defendant James R. Mack.He has also filed a Motion to Proceed
In Forma Pauperis. Because it appears that David is
unable to afford to pay the filing fee, the Court will grant
him leave to proceed in forma pauperis. For the
following reasons, David's constitutional claim will be
dismissed with prejudice and his state law claims will be
dismissed without prejudice for want of subject matter
Complaint is brief. He asserts that while attending
Thanksgiving dinner in 2018 he was confronted by family
members who claimed James had told them that David was HIV
positive and had been convicted of a sexual offense in 2008.
(ECF No. 2 at 5.) David asserts that he never revealed his
medical status to any family members other than his mother.
(Id.) He contends that he has suffered a disconnect
with his family, who have abandoned and alienated him.
(Id.) He also alleges his character and reputation
have been blemished and he has been irreparably harmed.
(Id.) He asserts claims against James for libel,
slander and defamation, and seeks $250, 000 in damages for a
violation of his "Fed. Rights/Violation of
Privacy." (Id. at 6.)
STANDARD OF REVIEW
Court will grant David leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fees to commence this civil action. Accordingly,
28 U.S.C. § 1915(e)(2)(B) requires the Court to dismiss
the Complaint if, among other things, it fails to state a
claim. Whether a complaint fails to state a claim under
§ 1915(e)(2)(B)(ii) is governed by. the same standard
applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), see Tourscher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains "sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
Conclusory allegations do not suffice. Id. As David
is proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).
vehicle by which a party may assert constitutional claims in
federal court is 42 U.S.C. § 1983. Section 1983 provides
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, 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
42 U.S.C. § 1983. "To state a claim under §
1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a
person acting under color of state law." West v.
Atkins, 487 U.S. 42, 48 (1988). Because there is no
allegation that James was acting under color of state law, he
is not a "state actor" and David may not pursue a
constitutional claim against him for violation of the right
to privacy. Accordingly, the federal question claim is
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a plausible claim.
the Court has dismissed his federal question claim, the Court
will not exercise supplemental jurisdiction over any state
law claims. Accordingly, the only independent basis for
jurisdiction over any such claims is 28 U.S.C. §
1332(a), which grants a district court jurisdiction over a
case in which "the matter in controversy exceeds the sum
or value of $75, 000, exclusive of interest and costs, and is
between... citizens of different States."
1332(a) requires "'complete diversity between all
plaintiffs and all defendants,' even though only minimal
diversity is constitutionally required. This means that,
unless there is some other basis for jurisdiction, 'no
plaintiff [may] be a citizen of the same state as any
defendant.'" Lincoln Ben. Life Co. v. AEI Life,
LLC, 800 F.3d 99, 104 (3d Cir. 2015) (quoting
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005)
and Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d
412, 419 (3d Cir. 2010) (internal footnotes omitted)). David
asserts that both he and James reside in Philadelphia.
Accordingly, David has failed to meet his burden of
demonstrating that this Court has subject matter jurisdiction
over any state law tort claims he may be raising.
Id. ("The burden of establishing federal
jurisdiction rests with the party asserting its
existence." (citing DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 n.3 (2006))).
foregoing reasons, the Court will grant David leave to
proceed in forma pauperis and dismiss his federal
constitutional claim for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii). The state law claims will
be dismissed without prejudice for want of jurisdiction and