Smith v. HSS

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Matthew A. Smith, 	)
)
Plaintiff, 	)
) 	REPORT AND RECOMMENDATION
vs. 	)
)
HSS, 	)
) 	Case No. 1:20-cv-021
Defendant. 	)
Plaintiff initiated the above-captioned action pro se on February 11, 2020. Judge Traynor
has referred this matter to the magistrate judge for preliminary consideration pursuant to 28 U.S.C.
§ 1915(e)(2). I recommend the above-entitled action be dismissed without prejudice.
I. 	BACKGROUND
Plaintiff is a resident of Colorado. He is proceeding pro se and in forma pauperis. In his
complaint he asserts claims for negligence and discrimination. 	Attached to his complaint is an
affidavit in which he states:
I began my employment with HHS in September 2019. I have a disability and I am
capable of doing most of my job duties without Accommodation; certainly with
Accommodation. I made multiple requests for Accommodation during December
2019 with medical correspondence and documentation. 	HSS ignored/denied my
requests for reasonable Accommodation. 	Instead I was placed on medical leave
December 27, 2019.
After initial leave I was re-assigned to DGS (Denver Government Services) in
downtown Denver where the Black populuation with HSS seems to be a lot greater.
Also, my symptoms/side effects and Accommodation requests seemed to be ignored
as I was placed in a security segment of the highest threat and alert levels
considering domestic and international affairs both current and ongoing.
I believe I have been discriminated against because of my race (Black), in violation
of Title VII of the Civil Rights Act of 1964, as amended, and based on my disability
within the meaning of the Americans with Disabilities Act of 1990, as amended.
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Employment Law Questions:
ADA Disabilities
Schitzophrenia, Anxiety Major, Depression Minor
Breach of Special Duty/Duty or Care, Negligence (Supervision), ADA Act
Discrimination, Intentional Infliction of Emotional Distress, and Emotional Distress.
(Doc. No. 3) (errors in original).
II. 	APPLICABLE LAW
Proceedings in forma pauperis are governed by 28 U.S.C. § 1915, which provides that the
court may authorize the commencement of a suit without prepayment of fees by a person submitting
a financial affidavit evincing an inability to pay. See 28 U.S.C. § 1915(a)(1). Notwithstanding
financial eligibility, the court may deny an application if it concludes the action is frivolous or
malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2); see also Neitzke v. Williams, 490 U.S. 319, 324 (1989)
(“Dismissals [under 28 U.S.C. § 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.”).
Additionally, federal courts are obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking. See Bueford v. Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir.
1993) (opining that the lack of subject matter jurisdiction cannot be waived and may be raised at any
time by a party to an action, or by the court sua sponte); Thomas v. Barham, 931 F.2d 521, 523 (8th
Cir. 	1991) (stating that federal courts are obligated to consider their jurisdiction shall raise
jurisdictional issues sua sponte when there is an indication that jurisdiction is lacking, even if the
parties concede the issue).
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Finally, when an indigent plaintiff does not include any allegations supporting personal
jurisdiction, the court may properly conclude, sua sponte, that the action should be summarily
dismissed. See Sanders v. United States, 760 F.2d 869, 871-72 (8th Cir. 1985); see also Trujillo v.
Williams, 465 F.3d 1210, 1216-17 (10th Cir. 2006) ("In the context of affirmative defenses, we have
cautioned that sua sponte dismissal on such grounds should be reserved for those extraordinary
instances when the claim's factual backdrop clearly beckons the defense. The same caution applies
to sua sponte dismissals for lack of personal jurisdiction and improper venue. Accordingly, under
§ 1915, the district court may consider personal jurisdiction and venue sua sponte only when the
defense is obvious from the face of the complaint and no further factual record is required to be
developed. And the district court may dismiss under § 1915 only if it is clear that [the plaintiff] can
allege no set of facts.") (internal citations and quotation marks omitted)).
II. 	DISCUSSION
A. 	Subject Matter Jurisdiction
In his complaint plaintiff asserts diversity of citizenship as opposed to the existence of a
federal question as the basis for this court’s exercise of subject matter jurisdiction. Diversity of
citizenship is clearly lacking given plaintiff’s statements in his complaint and supporting affidavit
that both he and defendant are Coloradans. The same cannot necessarily be said regarding the
existence of a federal question, however.
Plaintiff 	references both Title VII of the Civil Rights Act of 1964 in his supporting
affidavit. 	Treating the affidavit as an addendum or supplement to the complaint, plaintiff has
arguably articulated a federal statutory basis for his claim of discrimination. This does not end the
court’s jurisdictional analysis, however. 	The court must still consider whether it can exercise
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personal jurisdiction over the parties.
B. 	Personal Jurisdiction
Courts employ a two-step analysis when determining the propriety of their exercise of
personal jurisdiction. Northrop King v. Compania Productora Semillas, 51 F.3d 1383, 1387 (8th
Cir. 1995). First, they consider whether personal jurisdiction can properly be exercised under the
state law of the forum state; more specifically, whether jurisdiction exists under the state's “long-arm
statute.” Id. “Second, the court's exercise of jurisdiction must be consistent with the due process
clause of the Fourteenth Amendment.” Id. 	North Dakota courts have concluded that if a non-
resident's contacts with State satisfy due process, the North Dakota long-arm statute also is satisfied.
Consequently, the issue boils to down to whether this court can exercise personal jurisdiction over
the named defendants without violating the protections afforded by the due process clause.
“Due process allows a court to exercise personal jurisdiction over a non-resident defendant
only if doing so is consistent with traditional notions of fair play and substantial justice.” Id. (citing
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The plaintiff must demonstrate that the
non-resident defendant has had sufficient contacts with the forum state such that the defendant
“should reasonably anticipate being haled into court there.” Northrup King, 51 F.3d at 1387 (citing
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 297 (1980)).
When an indigent plaintiff does not include any allegations supporting personal jurisdiction,
the court may summarily dismiss the action sua sponte. See Sanders v. United States, 760 F.2d 869,
871-72 (8th Cir. 1985); see also Trujillo v. Williams, 465 F.3d 1210, 1216-17 (10th Cir. 2006) ("In
the context of affirmative defenses, we have cautioned that sua sponte dismissal on such grounds
should be reserved for those extraordinary instances when the claim's factual backdrop clearly
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beckons the defense. The same caution applies to sua sponte dismissals for lack of personal
jurisdiction and improper venue. Accordingly, under § 1915, the district court may consider personal
jurisdiction and venue sua sponte only when the defense is obvious from the face of the complaint
and no further factual record is required to be developed. And the district court may dismiss under
§ 1915 only if it is clear that [the plaintiff] can allege no set of facts.") (internal citations and
quotation marks omitted)). In the alternative, the court may find that the action should be transferred
to a district where personal jurisdiction might exist, pursuant to 28 U.S.C. § 1631.
Section 1631 provides that “[w]henever a civil action is filed in a court ... and that court finds
that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action
... to any other such court in which the action ... could have been brought at the time it was filed.”
A transfer under § 1631, rather than dismissal, is appropriate “when a plaintiff in good faith filed
in the wrong court and the statute of limitations would have run before he could refile properly.”
Gunn v. United States Dep't of Agriculture, 118 F.3d 1233, 1240 (8th Cir.1997), cert. denied, 522
U.S. 1111 (1998); In re Apex Oil Co., 884 F.2d 343, 346 (8th Cir. 1989); Hempstead County and
Nevada County Project v. United States E.P.A., 700 F.2d 459, 463 (8th Cir.1983). Thus, in order
to determine whether the “interests of justice” require that a case be transferred, rather than
dismissed, a court must consider whether dismissal of the action will affect the plaintiff's
vulnerability to a statute of limitations defense. If the plaintiff can still refile his action in a proper
court before the statute of limitations expires, then a transfer pursuant to § 1631 is unnecessary, and
the case can simply be dismissed. Gunn, 118 F.3d at 1240 (transfer pursuant to § 1631 not required
where plaintiff could still bring a timely action in a proper court); cf. Gray v. Lewis & Clark
Expeditions, Inc., 12 F. Supp. 2d 993, 999 (D. Neb. 1998) (case transferred to court that had
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personal jurisdiction where it appeared that the statute of limitations expired shortly after the case
was filed in the transferor court).
Here, there is nothing on the face of plaintiff’s complaint or in the supporting affidavit to
even remotely suggested that the conduct at issue occurred in North Dakota or otherwise involved
anyone with any meaningful contact with North Dakota. 	Rather, the conduct at issue occurred in
Colorado and involved Coloradans. Consequently, this court has no basis for exercising personal
jurisdiction over this matter.
The conduct giving rise to plaintiff’s claims allegedly occurred in December 2019. Thus,
it does not appear that there are any claims that were timely when this action was commenced which
will be rendered untimely if plaintiff is compelled to re-file his lawsuit in another district.
Consequently, the court should dismiss this action rather than transfer it to another district pursuant
to § 1631.
III. 	CONCLUSION
I recommend that the above-captioned action is DISMISSED without prejudice for lack of
personal jurisdiction.
NOTICE OF RIGHT TO FILE OBJECTIONS
Plaintiff shall have until March 18, 2020, to file an objection to this recommendation.
D.N.D. Civil L.R. 72.1(D)(3). Failure to file appropriate objections may result in recommended
action without further notice or opportunity to respond.
Dated this 27th day of February, 2020.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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