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Whittington v. City of Bangor

United States District Court, D. Maine

November 3, 2017

RICHARD WHITTINGTON, Plaintiff
v.
CITY OF BANGOR, et al., Defendants

          RECOMMENDED DECISION AFTER SCREENING COMPLAINT PURSUANT TO 28 U.S.C. § 1915(E)

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         In this action, Plaintiff Richard Whittington alleges that he was injured as the result of the City of Bangor's neglect. Plaintiff filed an application to proceed in forma pauperis (ECF No. 3), which application the Court granted. (ECF No. 4.) In accordance with the in forma pauperis statute, a preliminary review of Plaintiff's complaint is appropriate. 28 U.S.C. § 1915(e)(2).

         Following a review of Plaintiff's complaint, I recommend the Court dismiss Plaintiff's complaint without prejudice.

         Standard of Review

         The 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” or “seeks monetary relief against a defendant who is immune from such relief.” 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).

         When 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 (2007).

         Although 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).

         Factual Background

         According to the complaint, in 2015, Plaintiff suffered a traumatic brain injury when he fell in a hole on a city street. (Complaint ¶ 12, ECF No. 1.) Plaintiff now uses a wheelchair. (Id. ¶ 1.)

         On July 5, 2017, Plaintiff was a passenger on a bus operated by Defendant City of Bangor through its Community Connector program. (Id. ¶ 4.) Plaintiff asserts that the bus driver, a municipal employee, did not secure Plaintiff's wheelchair to the bus with the appropriate equipment that was available. (Id. ¶¶ 1, 9.) Specifically, according to Plaintiff, the bus driver only secured the front wheel and rear wheel on one side of the wheelchair. (Id. ¶ 2.) Plaintiff asserts that because the wheelchair was not fully secured, Plaintiff suffered physical injury during the bus ride and continues to experience physical and emotional pain. (Id. ¶¶ 3 - 4, 8, 10, 11, 31.)

         Plaintiff alleges that the bus driver was negligent, and that the bus driver is “prejudiced” toward Plaintiff because of Plaintiff's political views, and because Plaintiff rides the bus in a powered wheelchair. (Id. ¶ 6.) Plaintiff references the regulatory authority the U.S. Department of Transportation and the National Highway Traffic Safety Administration exercise over vehicle safety standards. (Id. at 6 - 7.)

         Discussion

          “‘Federal courts are courts of limited jurisdiction, ' possessing ‘only that power authorized by Constitution and statute.'” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). “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, 511 U.S. at 377 (citation omitted). “A court is duty-bound to notice, and act upon, defects in its subject matter jurisdiction sua sponte.” Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir. 2011). 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.

         A. Federal question jurisdiction under 28 ...


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