United States District Court, D. Maine
RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915(E)
C. NIVISON U.S. MAGISTRATE JUDGE
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).
a review of Plaintiff's complaint, I recommend the Court
dismiss Plaintiff's complaint without prejudice.
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).
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).
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.)
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.)
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.)
“‘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.
Federal question jurisdiction under 28 ...