Delcid v. Burger King LLC et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
filed
JUL 28 2022
ELNORA DELCID, 5;22-CV-05052-CBK
Plaintiff,
vs. ORDER
BURGER KING LLC,SARAH L. GOODMAN,
Employee; CLAYTON A. BLANKENFELD,
Mgts; BRANDON J. BLANKENFELD,Mgts;
KENNETH WELLS ALEXANDER,Employee;
BRIAN M.DUPREE, Mgts; RALPH W.
HOUSH,Mgts; TERRY TRIP?,Employee;
GARY L. WOODWARD,Employee; MATT
CARPENTER, Mgts; BETH M.
HUDDLESTON,Employee; and SHIRLEY
SCHMIDT,
Defendants.
Plaintiff filed a pro se complaint and an application to proceed without the
prepayment of fees. Plaintiff has made the requisite showing under 28 U.S.C. § 1915.
The Prison Litigation Reform Act requires the Court to conduct a preservice
review pursuant to 28 U.S.C. § 1915(e)(2)(B) prior to ordering service ofthe complaint.
Carter v. Schafer. 273 F. App'x 581, 582(8th Cir. 200)(unpublished)("the provisions of
28 U.S.C. § 1915(e) apply to all persons proceeding IFP and are not limited to prisoner
suits, and the provisions allow dismissal without service"). The Court is required to
dismiss a ease filed without the prepayment of fees at any time if it determines that the
action(1)is frivolous or malicious,(ii) fails to state a claim on which relief may be
granted, or (iii) seeks monetary relief against a defendant who is immune from such
relief." 28 U.S.C. § 1915(e)(2)(B).
I am required to give the plaintiffs pro se complaint liberal construction and
identify any discemable cognizable claim. Solomon v. Petrav. 795 F.3d 777,787(8th
Cir. 2015). 1 have conducted an initial review as required by § 1915A.
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Plaintiff, who resides in Virginia, filed a pro se form eomplaint alleging that
defendant Matt Carpenter assaulted her, called her names, including racists names, and
tried to rape her while she was in a bedroom (sic). She attached a type-written 2018
report of on interview in a matter entitled Delcid v. Cave Enterprise Operations wherein
it was reported by "CP" that her manager assaulted her in the women's bathroom.
Plaintiff previously filed a federal civil complaint entitled Delcid Elnora v. Burger
King. LLC, et al.. 5:20-ev-05033-JLV, which was liberally construed to allege
jurisdiction under 28 U.S.C. § 1331 and claims of sexual harassment and racial
discrimination. The complaint in that matter alleged, inter alia, substantially the same
claims -that defendant Matt Carpenter assaulted her in the bathroom and called her racist
names. That matter was allowed to proceed upon initial review. Following service of
process upon some defendants and subsequent motions to dismiss, the case was
dismissed on September 20, 2021.
The prior lawsuit was dismissed without prejudice against defendants Burger
King, LLC,Goodman, Housh, Carpenter, and Huddleston for lack of service of process.
The lawsuit was dismissed against defendants Alexander, Dupree, Tripp, and Woodward
with preiudiee for failure to state a claim. Defendants Clayton Blankenfeld, Brandon
Blankenfeld, and Shirley Schmidt were not defendants in the previous suit.
Plaintiff appealed the dismissal of 5;20-ev-05033-JLV to the United States Court
of Appeals for the Eighth Circuit, Court of Appeals Docket # 21-3686. The appeal was
dismissed as untimely on December 22, 2021. Plaintiffs subsequent motion to reopen
the appeal was denied on January 19, 2022.
Plaintiff supplemented her eomplaint in this case with a letter from the Federal
Trade Commission, copies of plaintiffs medical records, documents from Virginia Fair
Housing Office', copies ofcorrespondence she sent to and received from the Eighth
'On December 17, 2021, Elnora Delcid filed a civil rights complaint in the United States District Court for the
Eastern District of Virginia, 3:21-cv-00783-DJN, concerning a claim that, in July 2019 and thereafter, her landlord
discriminated against her. She was directed to file a more particularized complaint in compliance with Fed. R. Civ.
P. 8. Her complaint was dismissed with prejudice for failing to do so. Her motions to reopen the case were denied
and she was advised to stop her "conduct in repeatedly contacting the Clerk's office and moving for relief in her
case, which the Court closed as of February 17, 2022," and her conduct "is inappropriate and vexatious. The
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Circuit Court of Appeals concerning her prior appeal, copies of letters she sent to the
District of South Dakota Clerk of Court and addressed to "Judge" concerning her prior
federal case, and copies of documents and letters she submitted to or received from the
United States Supreme Court concerning an attempted filing of a petition for a writ of
certiorari. None ofthe preceding documents elucidate at all the basis of her federal claim
in this case.
"Federal courts are courts of limited jurisdiction, possessing only that power
authorized by Constitution and statute." Gunn v. Minton, 568 U.S. 251, 256, 133 S. Ct.
1059, 1064, 185 L. Ed. 2d 72(2013)(internal quotations omitted)(quoting Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391
(1994)). "The threshold inquiry in every federal case is whether the court has
jurisdiction" and the Eighth Circuit has "admonished districtjudges to be attentive to a
satisfaction ofjurisdictional requirements in all cases." Rock Island Millwork Co. v.
Hedges-Gough Lumber Co., 337 F.2d 24, 26-27(8th Cir. 1964), and Sanders v. Clemco
Industries. 823 F.2d 214, 216(8th Cir. 1987). As a threshold matter, the district court
must determine whether federal subject matter jurisdiction exists and this Court may raise
such issue sua sponte. Auto-Owners Inc. CO. v. Tribal Court of Spirit Lake Indian
Reservation. 495 F.3d 1017, 1020 (8th Cir. 2007).
Plaintiffs complaint shows that plaintiffs address is in the State of Virginia and
defendant Burger King,LLC,is alleged to be a business located in Rapid City, South
Dakota. Liberally construed, the complaint on its face raises the possibility that subject
matter jurisdiction is premised on diversity as authorized by 28 U.S.C. § 1332. There is
no other arguable basis for jurisdiction alleged in the complaint.
Jurisdiction under 28 U.S.C. § 1332 requires complete diversity of citizenship
between plaintiff and defendants and also requires that the matter in controversy exceeds
$75,000. Nowhere in plaintiffs complaint is an amount in controversy alleged. Plaintiff
does allude in the complaint that "they" sent her and the EEOC papers promising to give
continuation of such frivolous litigation conduct may result in sanctions such as a pre-filing injunction in this
matter."
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her money and that "they owe me that money because it was on paperwork." I take
judicial notice that plaintiff attached to the previous federal complaint in this district a
copy of correspondence from the EEOC and a proposed conciliation agreement offered in
2019, providing that employer Cave Enterprises agreed to pay plaintiff$5,000 in
settlement of her sex discrimination and sexual harassment charges. Also attached to that
complaint was a copy of a letter from the EEOC advising plaintiff that the EEOC had not
received a signed and dated copy from plaintiff and the respondent withdrew the offer.
That is the only document on file in either South Dakota district court case that could be
construed as paperwork showing "they owe me that money." The proposed settlement
amount was well below the $75,000 threshold for diversity jurisdiction.
"Federal Rule of Civil Procedure 8(a)(1) directs that a complaint shall set forth 'a
short and plain statement ofthe grounds upon which the court's jurisdiction depends.' A
complaint that does not contain an adequate statement ofjurisdictional facts is 'fatally
defective.'" Hutchins v. Homestead Sav.. 5 F.3d 531 (8th Cir. 1993). Plaintiffs
complaint fails to contain an adequate statement ofjurisdictional facts and is fatally
defective. Absent a basis for federal courtjurisdiction, plaintiffs claims cannot be
adjudicated in the United States District Court for the District of South Dakota.
There are a number of other infirmities in the complaint. Plaintiff has failed to
state any claim against any defendant other than defendant Carpenter. There are no
allegations of wrongdoing by any other person or entity. Even if diversity jurisdiction
were properly alleged, plaintiff has failed to allege any state court cause of action upon
which relief could be granted. Finally, plaintiff filed a form motion to appoint counsel
but failed to provide any information other than to sign the form. That motion is wholly
inadequate.
Now,therefore,
IT IS ORDERED:
I. Plaintiffs motion. Doc. 4, for leave to proceed informa pauperis without the
payment of the filing fee is granted.
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2. This matter is dismissed for failure to state a claim without prejudice and
without costs.
3. Plaintiffs motion, Doc. 5, for the appointment of counsel is denied.
4. This matter is closed. Plaintiff is directed to cease sending letters to or calling
the Clerk of Courts for the District of South Dakota concerning her two closed federal
cases. /
DATED this day of July, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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