United States District Court, W.D. Kentucky, Louisville Division
J. Hale, Judge.
Anthony Deshawn Boyington, a pretrial detainee proceeding
pro se, in forma pauperis has filed a
complaint (Docket Number 1) pursuant to 42 U.S.C. §
1983. Rule 12(h)(3) of the Federal Rules of Civil Procedure
provides, “If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.” As a review of the complaint reveals that this
Court lacks jurisdiction over the subject matter contained
therein, the Court will dismiss the action.
unclear,  the Court construes the complaint as
naming the following two Defendants: (1) H & R Block Tax
Service (“H & R Block”); and (2) Jamesetta R.
Miller, who Plaintiff identifies as his ex-girlfriend. In his
complaint, Plaintiff states that on February 23, 2017, he
called Defendant H & R Block and asked them to “cut
off” his tax card because $200.00 of Plaintiff's
tax return had been stolen. According to Plaintiff, when he
called to check on his account on March 14, 2017, he
discovered that someone had withdrawn money from his account
on March 8, 2017, and March 10, 2017, leaving him with a
balance of only $2.39 when he should have had a balance of
$600.00. According to Plaintiff, his card was used at
“Food Max's on 800 East Kentucky Street.”
Plaintiff states that Defendant Miller “had a male act
like he was [Plaintiff] and she stolen [Plaintiff's]
Identity from [him] while [he has] been in jail.”
Plaintiff seeks $5, 000.00 in money damages and $5, 000.00 in
axiomatic that federal district courts are courts of limited
jurisdiction, and their powers are enumerated in Article III
of the Constitution and in statutes enacted by Congress.
Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986); see generally, 28 U.S.C.
§§ 1330-1364. Therefore, “[t]he first and
fundamental question presented by every case brought to the
federal courts is whether it has jurisdiction to hear a case,
even where the parties concede or do not raise or address the
issue.” Douglas v. E.G. Baldwin & Assocs.,
Inc., 150 F.3d 604, 606-07 (6th Cir. 1998),
overruled on other grounds by Cobb v. Contract Transp.,
Inc., 452 F.3d 543, 548-49 (6th Cir. 2006). Without
jurisdiction, courts have no power to act. Id. at
606. The burden of establishing jurisdiction rests with the
plaintiff. Hedgepeth v. Tennessee, 215 F.3d 608, 611
(6th Cir. 2000); Douglas v. E.G. Baldwin & Assocs.,
Inc., 150 F.3d at 606.
has failed to meet his burden. For instance, under 28 U.S.C.
§ 1332, the diversity-of-citizenship statute, “The
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States; . . . .”
There must be “complete diversity between the
plaintiffs and defendants, i.e., ‘diversity
jurisdiction does not exist unless each defendant is
a citizen of a different State from each
plaintiff.'” Medlen v. Estate of Meyers,
273 F. App'x 464, 469 (6th Cir. 2008) (quoting Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373
(1978)) (emphasis in Owen). Plaintiff alleges an
amount in controversy of $10, 000, well below the $75, 000
required by the diversity-of-citizenship statute. Further,
according to the complaint, Plaintiff is a citizen of
Kentucky, and Defendants are identified as being from
Kentucky or located in Kentucky. Thus, the complaint fails to
satisfy the complete diversity-of-citizenship requirement.
For these reasons, Plaintiff cannot bring any state-law
claims by way of the federal-diversity statute.
under the federal-question statute, 28 U.S.C. § 1331,
“district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States.” Plaintiff brings this
action on a 42 U.S.C. § 1983 complaint form. Section
1983 creates no substantive rights, but merely provides
remedies for deprivations of rights established elsewhere. As
such, it has two basic requirements: (1) the deprivation of
federal statutory or constitutional rights by (2) a person
acting under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988); Flint v. Ky. Dep't of
Corr., 270 F.3d 340, 351 (6th Cir. 2001). Plaintiff
makes no allegation that Defendants were acting under color
of state law when they allegedly harmed Plaintiff. Further,
Plaintiff does not allege any violation of the Constitution,
laws or treaties of the United States. Nor is the Court aware
of any authority under which Plaintiff may invoke the
jurisdiction of this Court to remedy the alleged wrong about
which he complains. Thus, this Court does not have
federal-question jurisdiction over this complaint.
to the extent Plaintiff may be seeking to initiate a criminal
complaint against one or both Defendants, his action fails.
“It is well settled that the question of whether and
when prosecution is to be instituted is within the discretion
of the Attorney General.” Powell v.
Katzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965). Only
federal prosecutors, and not private citizens, have authority
to initiate federal criminal charges. See Sahagian v.
Dickey, 646 F.Supp. 1502, 1506 (W.D. Wis. 1986); see
also United States v. Nixon, 418 U.S. 683, 693(1974)
(“Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case.”);
Saro v. Brown, 11 F. App'x 387, 388 (6th Cir.
2001) (“A private citizen has no authority to initiate
a federal criminal prosecution; that power is vested
exclusively in the executive branch.”). Plaintiff is a
private citizen and cannot initiate criminal charges against
this Court recognizes that pro se pleadings are to
be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519
(1972), the duty “does not require us to conjure up
unpled allegations.” McDonald v. Hall, 610
F.2d 16, 19 (1st Cir. 1979). Additionally, this Court is not
required to create a claim for Plaintiff. Clark v.
Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975). In fact, to do so would require the
“courts to explore exhaustively all potential claims of
a pro se plaintiff, [and] would also transform the
district court from its legitimate advisory role to the
improper role of an advocate seeking out the strongest
arguments and most successful strategies for a party.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
having failed to establish this Court's jurisdiction, the
instant action must be dismissed. The Court will enter an
Order consistent with this Memorandum Opinion.