Swartz v. First Worthing Mgmt ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10284
(Summary Calendar)
RICHARD ALLEN SWARTZ,
Plaintiff-Appellant,
versus
FIRST WORTHING MGMT, COMPANY,
ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-167-R)
(June 1, 1995)
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Richard Allen Swartz, a Texas inmate
proceeding pro se and in forma pauperis (IFP), appeals from the
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
dismissal in district court pursuant to Fed. R. Civ. P. 12(b)(1) of
his suit against Defendants-Appellees. For the reasons set forth
below, we affirm.
I
FACTS AND PROCEEDINGS
Swartz filed his complaint against four non-diverse parties,
to-wit: First Worthing Management Company (FWM), Jefferson Park
Apartments, Lori Ann Turner, the on-site manager for FWM, and
Debbie Liebman, regional supervisor for FWM. Swartz noted in his
complaint that he had five other lawsuits pending in federal
district court, four filed two months prior to this complaint and
one filed nine months earlier.
Swartz alleged that on November 18, 1993, he was arrested and
released on bond for misdemeanor assault. On November 19th, at
approximately 6:30 p.m., Swartz deposited his check, a "reletting
fee," due by midnight on the 20th, in the Jefferson Park rent-
deposit box. The next day Turner came to Swartz's place of
employment and returned the check to him. She told him that
Liebman had instructed her to serve Swartz with an eviction notice
for failure to pay the reletting fee timely. Swartz was asked to
leave the apartment complex.
Swartz claims that he attempted to find an apartment at other
complexes, but was disapproved as a result of the information
spread by Turner. Swartz contended that his parole officer, Eric
Trainer, falsely informed Turner of Swartz's offense of
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conviction.1 Swartz also alleged that before November 18th his
credit rating was excellent.
From these facts, Swartz asserted an action premised on
discrimination and slander by Defendants-Appellees.
The district court, without benefit of a questionnaire or a
Spears2 hearing, viewed Swartz's allegations as asserting that the
Defendants discriminated against him because he had been arrested.
The court dismissed the complaint without prejudice for want of
jurisdiction, concluding that the suit should be filed in state
court.
II
ANALYSIS
Although inartfully worded, Swartz's brief argues that the
district court erred in concluding that it lacked jurisdiction over
his claim of discrimination. We review de novo a dismissal for
want of subject matter jurisdiction. EP Operating Ltd. v. Placid
Oil Co., 26 F.3d 563, 566 (5th Cir. 1994).
The district court viewed Swartz's allegations as claiming
discrimination stemming from his arrest. The complaint can also
be construed, however, as alleging discrimination by Defendants-
Appellees based on the false information given by Swartz's parole
officer. Trainer informed Turner of Swartz's offense of
conviction, but in so doing stated the wrong offense. This
1
Before this court, Swartz alleges that Trainer spoke with
Turner on November 20th.
2
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
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possibly led to the management decision wrongfully to evict Swartz
and to spread the word of that for which he was convicted.
Given this version of facts presented by Swartz, it is
possible that he has attempted to state a civil rights claim
pursuant to 42 U.S.C. § 1983. See Daniel v. Ferguson, 839 F.2d
1124, 1128, 1130-31 (5th Cir. 1988). Swartz did not name Trainer
as a defendant, however, and the complaint does not indicate what
federal right of Swartz has been impinged. Moreover, on the
limited facts presented in the record, it is unclear whether such
a claim has even been raised.
Under Fed. R. Civ. P. 8(a), a complaint must set forth the
basis of the federal court's jurisdiction, a short and plain
statement of the plaintiff's claim or claims, and the relief that
the plaintiff seeks. "Because there is no presumption in favor of
federal court jurisdiction and that jurisdiction is limited, the
basis for jurisdiction must be affirmatively shown." Kirkland
Masonry, Inc. v. Commissioner, 614 F.2d 532, 533 (5th Cir. 1980).
"Procedural requirements established by Congress for gaining access
to the federal courts are not to be disregarded by courts out of a
vague sympathy for particular litigants." Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 152 (1984).
A review of Swartz's complaint and his appellate brief does
not indicate, even under liberal construction, how Swartz properly
attempted to invoke the district court's jurisdiction.3 The main
3
We note the difference in handwriting from the complaint
and the appellate brief. Whoever is now assisting Swartz with his
legal writings understands how to state appellate jurisdiction.
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thrust of Swartz's complaint appears to concern state law claims of
wrongful eviction, slander, and whatever type of discrimination he
attempted to allege. As discussed above, the liberally construed
complaint's possible civil rights claim is unclear and latent.
Even if the district court had provided Swartz an opportunity to
flesh out the factual basis of the complaint, it remains doubtful
whether federal jurisdiction would have become manifest. But see
Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97
(5th Cir.) (noting that this court's "license to engage in
speculation as to the existence of additional facts" to a
complaint, filed by a plaintiff proceeding IFP, is limited by the
district court's use of hearings or questionnaires to flesh out
those facts), cert. denied, 115 S. Ct. 220 (1994). Therefore, the
district court did not err in dismissing, without prejudice,
Swartz's complaint for lack of federal jurisdiction.
AFFIRMED.
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