United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS AND ORDER DENYING AS MOOT DEFENDANTS' MOTION
FOR JUDICIAL NOTICE
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
the Court are Defendants PrideStaff and Jeremy Thacker's
Motion to Dismiss. (Docket Entry (“D.E.”) #8) and
Defendants' Motion for Judicial Notice (D.E. #9). The
Motion to Dismiss is referred to the United States Magistrate
Judge for Report and Recommendation and the Motion for
Judicial Notice is referred for determination. For the reasons
set forth herein, it is RECOMMENDED that Defendants'
Motion to Dismiss be GRANTED. Further, it is ORDERED that
Defendants' Motion for Judicial Notice be DENIED AS MOOT.
19, 2017, Plaintiffs Conexx Staffing Services
(“Conexx”) and Jeremy Thacker filed a pro
se “Complaint for Violation for Civil Rights under
42 U.S.C. § 1983.” (D.E. #1). Their Complaint was
filed on a form available for pro se individuals;
however, this particular form is typically for incarcerated
inmates and asks certain questions regarding imprisonment and
prisoner grievances. (Compl. § I & II). Regardless,
Plaintiffs utilized the form to name “Jeremy Thacker,
CEO” and “PrideStaff” as Defendants.
(Compl. at § III). He summarized his claim as follows:
In June of 2011, Jeremy Thacker/PrideStaff submitted a
proposal to MLGW for clerical services and general laborers,
a 5 year contract to state January 2012 to December 31, 2016.
The condition of an award was that the [submitter] had to
agree to utilize the services of a WBE/MBE. After meeting
with Thacker and agreeing to give 25% of the contract and
giving him all certification needed[, ] he gave all
information to MLGW. The contract was awarded to PrideStaff
but Conexx never received any money or funds from this
contract that was in effect for 5 years with Conexx
(Compl. § IV). Plaintiffs seek 25% of the contract
“plus damages” as relief. (Compl. § V).
12(b)(1) of the Federal Rules of Civil Procedure allows a
party to assert lack of subject-matter jurisdiction by
motion. Additionally, federal courts are obligated to
consider the issue of subject-matter jurisdiction sua
sponte to ensure that the requirements are met.
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012).
Jurisdiction in the district courts is based upon either
federal question, which includes all civil actions arising
under the Constitution, laws, or treaties of the United
States, 28 U.S.C. § 1331, or diversity of citizenship,
which includes all civil actions where the matter in
controversy exceeds the sum or value of $75, 000 exclusive of
interests and costs, and is between citizens of different
states or of otherwise diverse parties therein defined, 28
U.S.C. § 1332.
questions must be disclosed upon the face of the
complaint.” Phillips Petroleum Co. v. Texaco,
Inc., 415 U.S. 125, 127 (1974) (internal quotation marks
and citations omitted). To successfully plead a Section 1983
claim, a plaintiff must allege (1) the deprivation of a right
secured by the Constitution or laws of the United States and
(2) the deprivation was caused by a person acting under color
of state law. Tahfs v. Proctor, 316 F.3d 584, 590
(6th Cir. 2003). “A plaintiff may not proceed under
§ 1983 against a private party ‘no matter how
discriminatory or wrongful' the party's
conduct.” Tahfs, 316 F.3d at 590 (quoting
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999)). The Sixth Circuit recognizes three tests for
determining whether private conduct is fairly attributable to
the state: (1) the public function test, which requires that
the private entity exercise powers which are traditionally
reserved for the state; (2) the state compulsion test
requires proof that the state significantly encouraged or
somehow coerced the private party, either overtly or
covertly, to take a particular action so that the choice is
really that of the state; and, (3) the nexus test, which
requires a sufficiently close relationship, such as through
state regulation or contract, between the state and the
private actor so that the action may be attributed to the
state. Tahfs, 316 F.3d at 591 (quoting Ellison
v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995)).
review, although Plaintiffs selected the pro se form
for Section 1983 prisoner claims, they do not allege a
Section 1983 claim on the face of his Complaint. He alleges
no deprivation of a right secured by the United States
Constitution or the laws of the United States. He has also
named as Defendants a private person and a private company.
Section 1983 claims may not be pursued against a private
party no matter how discriminatory, and Plaintiffs have not
alleged in any way that PrideStaff and Thacker's conduct
should be attributable to the state. Finally, Plaintiffs do
not mention any other basis for federal question
jurisdiction, and the Court recommends that there is none
alleged on the face of the Complaint.
respect to diversity jurisdiction, Plaintiffs seek damages in
the amount of $949, 340.00, which is far above the $75,
000.00 jurisdictional threshold. However, Plaintiffs have not
alleged diversity of citizenship. Instead, they have only
mentioned Defendants by name. This is insufficient, as an
averment of jurisdiction must be expressly stated on the face
of the pleading. Jackson v. Ashton, 33 U.S. 148, 149
(1834). Where jurisdiction depends on the diversity of
citizenship, those facts must be contained in the pleadings.
Id. As they are not here, the Court recommends that
diversity jurisdiction is also not alleged in the Complaint.
reasons set forth herein, it is recommended that
Plaintiff's Complaint be dismissed without prejudice. As
such, Defendant's Motion for Judicial Notice is DENIED as