The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Plaintiff Frank Bellezza ("Bellezza"), a prisoner confined at
Sing Sing Correctional Facility in Ossining, New York ("Sing
Sing"), seeks to bring this action in forma pauperis
pursuant to 28 U.S.C. § 1915 (1998). This Court will (1) grant
Plaintiff's application to proceed in forma pauperis; (2)
direct the Clerk of the Court to file the Complaint without
pre-payment of the filing fee; (3) assess the $250.00 filing fee
against Plaintiff; and (4) direct the institution having custody
of the Plaintiff to forward payments from Plaintiff's
institutional account to the Clerk of the Court each month the amount in the account exceeds
$10.00, until the $250.00 filing fee is paid in full, regardless
of the outcome of the litigation. See 28 U.S.C. § 1915 (a), (b)
(1), (b) (2), (b) (4).
Pursuant to 28 U.S.C. §§ 1915 (e) (2), the Court has reviewed
the Complaint to identify cognizable claims. The Court will
dismiss the Complaint for lack of subject matter jurisdiction.
Plaintiff brings this action seeking damages of $268.20, and
costs and fees for alleged violations of his rights secured by
the Constitution and laws of the United States. Defendant is
Flaghouse, Inc., apparently a New Jersey Corporation located in
Hasbrouck Heights, New Jersey. (Compl., ¶ 3.)
Plaintiff asserts the following facts: On or about November 15,
2004, he placed an order to Defendant from New York through the
U.S. mail through his brother, and forwarded acash payment.
(Compl., ¶ 4.) According to Plaintiff, the order was never
filled, despite his subsequent submission of two follow-up
letters. (Id.) Plaintif then sent a third letter on or about
February 25, 2005, which he claims resulted in "the defendant
having the facility holding me in custody charge me with
extortion, lying, and false statements." (Id.)
A. Standard for Dismissal
Rule 8(a)(2) requires a complaint to include "a short and plain
statement of the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8 (a) (2); accord Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168 (1993). Plaintiff is "required to `set forth
sufficient information to outline the elements of his claim or to
permit inferences to be drawn that these elements exist.'" Kost
v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 340 (2d ed. 1990). The Court "must
determine whether, under any reasonable reading of the pleadings,
the plaintiff? may be entitled to relief, and . . . must accept
as true the factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom." Nami v.
Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citing Holder v.
Allentown, 987 F.2d 188, 194 (3d Cir. 1993)); Eli Lily & Co. v.
Roussel Corp., 23 F. Supp.2d 460, 474 (D.N.J. 1998) (citing
Nami and Holder).
A pro se complaint is held to less stringent standards than
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972); Then v. I.N.S., 58 F. Supp.2d 422, 429 (D.N.J. 1999),
aff'd sub nom. Then v. Quarantino, 208 F.3d 206 (3d Cir.
2000). "Under our liberal pleading rules, during the initial
stage of litigation, a district court should construe all
allegations in a complaint in favor of the complainant" and give
"credit to the allegations of the complaint as they appear? in
the complaint." Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997);
see also Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.
1992). But a court need not credit a complaint's "bald
assertions" or "legal conclusions" when deciding whether
dismissal is appropriate. Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997); see also Fernandez-Montes v.
Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)
("[C]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to
dismiss."). "When it appears beyond doubt that no relief could be granted under any set of
facts which could be proved consistent with the allegations of
the complaint, a dismissal pursuant to Rule 12(b)(6) is proper."
Robinson v. Fauver, 932 F. Supp. 639, 642 (D.N.J. 1996) (citing
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Based upon the Plaintiff's assertions the Court will construe
the Complaint as raising breach of contract and fraud claims with
respect to an interstate purchase order of materials. The Court
will now analyze Plaintiff's claims to determine whether
dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B) is warranted.
B. Subject Matter Jurisdiction
Plaintiff has asserted subject matter jurisdiction pursuant to
28 U.S.C. § 1331 (2001), the federal question statute. (Compl.,
Statement of Jurisdiction.) For most routine civil litigation,
federal subject-matter jurisdiction exists only when a federal
question is at issue, or when there is diversity of citizenship
between the parties. For federal question jurisdiction to exist,
the action must arise under the Constitution, laws, or treaties
of the United States. See 28 U.S.C. § 1331, supra. For
diversity jurisdiction to exist, the controversy must be between
citizens of different states, or citizens of a state and citizens
or subjects of a foreign state, and must also exceed the sum or
value of $75,000.00. 28 U.S.C. § 1332(a) (2001). Ratcliff v.
Southern C/P/D, Inc., 2002 WL 32075773, *2-3 (E.D.Tex.) to 2002
WL 32075773, *3 (E.D.Tex.June 21,2002) aff'd, 64 Fed.Appx. 417
(5th Cir. 2003). See also Herbst v. Viglianco, 1999 WL
362960, *4 (S.D.N.Y.May 26, 1999) quoting 13B Wright, Miller &
Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3562
(1984) ("[F]or federal question jurisdiction to exist, the
federal law must be a direct element in the plaintiff's claim and
. . . it is not enough that it comes in remotely or indirectly. This explains, for example, . . . those cases holding
that a suit on an agreement between private parties does not
raise a federal question merely because the agreement was
authorized by federal law or some federal agency has approved the
agreement."). Moreover, the "[t]he burden of establishing federal
jurisdiction rests on the party seeking the federal forum."
Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991).
Applying these principles to the case at bar, Plaintiff has
simply failed to meet his burden of establishing federal
jurisdiction. He has asserted no violation of a federal right,
and his claim for $268.20 is below the amount in controversy
requirement required for the establishment of diversity
jurisdiction. The Court ...