United States District Court, D. Maine
SIDNEY P. KILMARTIN, Plaintiff
MARTY RIDGE, Defendant
RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915(e)
C. Nivison U.S. Magistrate Judge
action, Plaintiff Sidney Kilmartin alleges Defendant Martin
Ridge, Plaintiff's counsel in criminal case number
1:14-cr-129-JAW, overbilled Plaintiff for services and
provided ineffective assistance.
filed an application to proceed in forma pauperis (ECF No.
4), which motion the Court granted. (ECF No. 7.) In
accordance with the in forma pauperis statute, a preliminary
review of Plaintiff's complaint and amended complaint is
appropriate. 28 U.S.C. § 1915(e)(2).
explained below, following a review of Plaintiff's
pleadings, I recommend the Court dismiss Plaintiff's
complaint and amended complaint for want of jurisdiction.
federal in forma pauperis statute, 28 U.S.C. § 1915, is
designed to ensure meaningful access to the federal courts
for those persons unable to pay the costs of bringing an
action. When a party is proceeding in forma pauperis,
however, “the court shall dismiss the case at any time
if the court determines, ” inter alia, that the action
is “frivolous or malicious” or “fails to
state a claim on which relief may be granted.” 28
U.S.C. § 1915(e)(2)(B). “Dismissals [under §
1915] are often made sua sponte prior to the issuance of
process, so as to spare prospective defendants the
inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S.
319, 324 (1989).
considering whether a complaint states a claim for which
relief may be granted, courts must assume the truth of all
well-plead facts and give the plaintiff the benefit of all
reasonable inferences therefrom. Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A
complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
a pro se plaintiff's complaint is subject to “less
stringent standards than formal pleadings drafted by lawyers,
” Haines v. Kerner, 404 U.S. 519, 520 (1972),
this is “not to say that pro se plaintiffs are not
required to plead basic facts sufficient to state a claim,
Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir.
1980). To allege a civil action in federal court, it is not
enough for a plaintiff merely to allege that a defendant
acted unlawfully; a plaintiff must affirmatively allege facts
that identify the manner by which the defendant subjected the
plaintiff to a harm for which the law affords a remedy.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
who is presently incarcerated at the Somerset County Jail,
alleges that his counsel in case number 1:14-cr-129-JAW,
Defendant Ridge, provided ineffective assistance at trial and
overcharged Plaintiff for Defendant's
services. (Complaint, ECF No. 1; Am. Complaint, ECF
No. 6.) More specifically, Plaintiff states that he is
“seeking the court's help in getting [a refund] of
unearned payments and retainer money.” (Am. Compl. at
3, ¶ V.) Plaintiff asserts that he resides in Madison,
Maine, and that Defendant resides in Portland, Maine.
(Id. at 2.)
“Federal courts are courts of limited jurisdiction.
They cannot act in the absence of subject matter
jurisdiction, and they have a sua sponte duty to confirm the
existence of jurisdiction in the face of apparent
jurisdictional defects.” United States v. Univ. of
Mass., Worcester, 812 F.3d 35, 44 (1st Cir. 2016).
“It is to be presumed that a cause lies outside this
limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citation omitted). A review of
Plaintiff's complaint fails to reveal a basis upon which
this Court could exercise either federal question
jurisdiction or diversity jurisdiction under 28 U.S.C.
§§ 1331 and 1332.
claims are based in state tort and contract law, not federal
law. Although Plaintiff asserts Defendant provided
ineffective assistance when defending against federal
criminal charges, the only potential federal claim over which
this Court would have jurisdiction is a habeas claim
collaterally attacking the judgment of conviction, pursuant
to 28 U.S.C. § 2255. Because the Court has yet to enter
judgment in the case, a habeas motion collaterally attacking
the conviction would be premature. Plaintiff, therefore, has
not asserted a claim within the Court's federal question
has also not asserted a claim within the Court's
diversity jurisdiction. Title 28 U.S.C. § 1332 provides
in relevant part, “[t]he 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.” 28 U.S.C. §
1332(a)(1). For the exercise of diversity jurisdiction to be
valid, there must be “complete diversity of citizenship
as between all plaintiffs and all defendants.”
Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st
Cir. 2008). Because both Plaintiff and Defendant were
domiciled in Maine when Plaintiff asserted this action,
Plaintiff cannot rely on the Court's diversity
jurisdiction to maintain his action in ...