United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
R. ANDERSON UNITED STATES MAGISTRATE JUDGE
cause is before the Court on the Motion to Proceed In
Forma Pauperis filed by Kimberly Edwards [hereinafter
"Plaintiff"], an adult resident citizen of Pickens,
Holmes County, Mississippi. Plaintiff filed a Complaint
against Shells Gas Station, Citgo, Kangaroo Express, and
Domino Pizza utilizing a form Complaint ["Pro Se 1 (Rev.
12/16) Complaint for a Civil Case"]. Plaintiff does not
state the citizenship of Defendants other than to give their
addresses in Mississippi. She marked "federal
question" as the basis for federal court jurisdiction on
the Complaint [1, p. 3].
only Plaintiff's income and expenses, the undersigned
finds that she is entitled to proceed without the prepayment
of fees. She is unemployed and has no income or property, and
her motion should be granted. Where the plaintiff's
financial information shows that a filing fee would cause
"undue financial hardship, " the district court has
discretion to reduce or waive the fee. Prows v.
Kastner, 842 F.2d 138, 140 (5th Cir. 1988).
Plaintiff in forma pauperis status to proceed with
this lawsuit in federal court also permits the Court to
dismiss the case at any time if it determines that the
Complaint fails to state a claim on which relief may be
granted. 28 U.S.C. §1915(e)(2)(B). This statute applies
equally to prisoner and non-prisoner cases. Newsom v.
EEOC, 301 F.3d 227, 231-33 (5th Cir. 2002). The case may
also be dismissed at any stage if there is no basis for
federal subject matter jurisdiction.
Complaint, III. Statement of Claim, Plaintiff alleged:
Everytime I enter one of these no matter whether Im paying
cash or not I see charges on my credit card, even if I
don't swipe my card in the store, later on I would be
billed for what ever i paid for cash.
[1, p. 4].
Section IV., "Relief, " Plaintiff alleged that she
was entitled to damages due to "breach data, credit card
fraud, theft, $7, 000, 000.00 a piece." [1, p. 4].
Courts are courts of limited jurisdiction and courts
"must presume that a suit lies outside of this limited
jurisdiction, and the burden of establishing federal
jurisdiction rests on the party seeking the federal
forum." Howery v. Allstate Ins. Co., 243 F.3d
912, 916 (5th Cir.2001); U.S.Const., art. III, § 2.
Subject matter jurisdiction must be affirmatively shown
before the District Court considers the merits of any case.
See Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574,
582 -83 (1999). The Court must inquire into its
subject-matter jurisdiction on its own initiative.
Id. It may sua sponte raise the
jurisdictional issue at any time and in fact has a
"continuing obligation to examine the basis for
jurisdiction." MCG, Inc. v. Great W. Energy
Corp., 896 F.2d 170, 173 (5th Cir.1990)(see also
Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66
(5th Cir.1999)). The record in this case fails to
affirmatively indicate a basis for subject matter
Plaintiff attempts to invoke federal question jurisdiction,
she does not set forth a claim under a specific federal
statute or the United States Constitution. If a cause of
action has been stated, it would only be a state law tort
claim against Defendants. All of them appear to be private
corporations, not government actors, and the Complaint fails
to state a federal claim. The Court cannot conclude that
federal question jurisdiction exists.
she does not claim diversity jurisdiction, the Court notes
that, based upon the record, complete diversity of
citizenship is also lacking. 28 U.S.C. § 1332(a)(1). The
Court must have original jurisdiction, either via federal
question or through diversity jurisdiction. The Plaintiff is
prosecuting this case pro se, and her pleadings must be
liberally construed. Pena v. United States of
America, 122 F.3d 3, 4 (5th Cir. 1997).
Although the undersigned has liberally construed her
allegations, no basis for subject matter jurisdiction can be
discerned from the allegations of the Complaint. The Court is
unable to exercise jurisdiction to consider the merits of the
case. See Ruhrgas, 526 U.S. at 583. Accordingly,
Plaintiff's motion to proceed without paying costs should
be granted but her complaint should then be dismissed without
these reasons, the undersigned recommends that this Complaint
be accepted as filed without the prepayment of a filing fee,
but dismissed pursuant to Federal Rule of Civil Procedure
12(h)(3) for lack of subject-matter jurisdiction.
accordance with the rules and 28 U.S.C. § 636(b)(1),
Plaintiff may serve and file written objections to the
recommendations within 14 days after service of this report
and recommendation. Plaintiff is hereby notified that failure
to file timely written objections to the proposed findings,
conclusions, and recommendations contained within this report
and recommendation after being served with a copy shall bar
her, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal