Foster, Tyrone v. Seemann, Todd

• Court: District Court, W.D. Wisconsin
• Decided: November 29, 2023
• Docket: 3:23-cv-00759
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

TYRONE A. FOSTER,

Plaintiff, v. OPINION and ORDER

TODD SEEMANN, WIS. MUTUAL INS. CO., DOES 23-cv-759-jdp I-V, and ROES CORPS. VI-X,

Defendants.

Pro se plaintiff Tyronne A. Foster, a state prisoner, alleges that defendant Todd Seemann, a private individual, crashed his car into Foster when he tried to cross a street. Foster was hospitalized after the accident and suffered severe injuries that required months of rehabilitation. Foster generally alleges that he’s suing for a violation of federal law, but his allegations suggest only a negligence claim under Wisconsin law. Because Foster proceeds in forma pauperis, I must screen the complaint under 28 U.S.C. § 1915A(e)(2)(B) and dismiss any part of it that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from an immune defendant. I must accept Foster’s allegations as true and construe them generously, holding the complaint to a less stringent standard than one a lawyer drafts. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). I will dismiss the case without leave to amend for lack of subject matter jurisdiction. District courts have subject matter jurisdiction over civil actions where the matter in controversy exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332(a)(1). This statute requires “complete diversity of citizenship.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). “That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Id. (emphasis in original). Because Foster alleges that he and Seemann are Wisconsin citizens, he cannot show complete diversity of citizenship. The court of appeals has cautioned against dismissing a pro se plaintiff’s case without

giving him a chance to amend the complaint. Felton v. City of Chicago, 827 F.3d 632, 636 (7th Cir. 2016). But dismissal in this case is appropriate because Foster’s assertion of diversity jurisdiction is frivolous. See Okoro v. Bohman, 164 F.3d 1059, 1063 (7th Cir. 1999) (“A complaint that identified the defendant as a citizen of the same state as the plaintiff and alleged no basis other than diversity of citizenship for federal jurisdiction might be dismissed as frivolous . . . .” (citations omitted)). So I will dismiss the case and direct the clerk to record a strike under 28 U.S.C. § 1915(g). See De La Garza v. De La Garza, 91 F. App’x 508, 509 (7th Cir. 2004). This case belongs in state court.

ORDER IT IS ORDERED that: 1. This case is dismissed without prejudice, but without leave to amend, for lack of subject matter jurisdiction. 2. The clerk of court is directed to record a strike under 28 U.S.C. § 1915(g). 3. The clerk of court is directed to enter judgment and send plaintiff copies of this order and the judgment. Entered November 29, 2023. BY THE COURT:

/s/ ________________________________________ JAMES D. PETERSON District Judge