Mitchell v. Lietaer ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 21, 2018
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Elisabeth A. Shumaker
Clerk of Court
FREIDA L. MITCHELL,
Plaintiff - Appellant,
No. 18-1409
v. (D.C. No. 1:18-CV-02071-LTB)
(D. Colo.)
JESSICA LIETAER, Esq.,
Defendant - Appellee.
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ORDER AND JUDGMENT*
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Plaintiff Freida Mitchell, a pro se litigant, appeals the dismissal of her action by
the United States District Court for the District of Colorado for lack of subject-matter
jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Ms. Mitchell filed a complaint against Jessica Lietaer—an attorney who
represented the United States Postal Service (USPS) in an administrative proceeding
brought by Ms. Mitchell before the Equal Employment Opportunity Commission. The
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
complaint purportedly sets forth claims under Title VII of the Civil Rights Act of 1964.
But it merely alleges a legal-malpractice or professional-misconduct claim insufficient to
invoke the court’s federal-subject-matter jurisdiction and fails to provide a basis for
exercising diversity jurisdiction.
Federal district courts “have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “For a case to
arise under federal law within the meaning of § 1331, the plaintiff’s well-pleaded
complaint must establish one of two things: either that federal law creates the cause of
action or that the plaintiff’s right to relief necessarily depends on resolution of a
substantial question of federal law.” Firstenberg v. City of Santa Fe, 696 F.3d 1018,
1023 (10th Cir. 2012) (internal quotation marks omitted). “[J]urisdiction under § 1331
exists only where there is a ‘colorable’ claim arising under federal law.” See McKenzie v.
U.S. Citizenship & Immigration Servs., Dist. Dir., 761 F.3d 1149, 1156 (10th Cir. 2014).
“[A] court may dismiss for lack of subject-matter jurisdiction when the claim is so
insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise
completely devoid of merit as not to involve a federal controversy.” Id. at 1156–57.
(internal quotation marks omitted).
Ms. Mitchell fails to allege a “colorable” claim arising under federal law. As an
initial matter, we note that her complaint’s stated basis for jurisdiction is “Legal
Malpractice, 18 U.S.C. § 1332.” R. at 36. But she does not cite any federal law
providing a cause of action for legal malpractice, and we are aware of none. And
although elsewhere in her complaint she alleges that Title VII gives rise to subject-matter
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jurisdiction in her case, she fails to allege anything close to discrimination by an
employer. Indeed, she even fails to allege that Ms. Lietaer was her employer or a
supervisory employee liable in an official capacity. See Haynes v. Williams, 88 F.3d 898,
901 (10th Cir. 1996) (individual supervisor cannot be held personally liable under Title
VII). We note that Ms. Mitchell previously appealed the dismissal of her Title VII claim
against USPS, which we dismissed as frivolous. See Mitchell v. Brennan, 728 F. App’x
876, 876 (10th Cir. 2018). Any claim under Title VII here would be so “devoid of merit”
that jurisdiction under § 1331 does not exist. McKenzie, 761 F.3d at 1157 (internal
quotation marks omitted).
Nor can Ms. Mitchell invoke diversity jurisdiction. Diversity jurisdiction exists if
“the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . .
citizens of different States.” 28 U.S.C. § 1332(a)(1). But Ms. Mitchell does not
allege diversity of citizenship and the addresses provided in her complaint for both
herself and Ms. Lietaer are in Colorado.
I. CONCLUSION
We AFFIRM the district court’s order of dismissal and DENY Ms. Mitchell’s
motion to proceed in forma pauperis.
Entered for the Court
Harris L Hartz
Circuit Judge
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