United States District Court, N.D. Oklahoma
OPINION AND ORDER
V, EAGAN UNITHD STATES DISTRICT JUDGE.
before the Court is plaintiff's motion for leave to
proceed in forma pauperis (Dkt. # 2), and
plaintiff's complaint (Dkt. # 1). In reliance upon the
representations and information set forth in plaintiff's
motion for leave to proceed in forma pauperis and
supporting affidavit, said motion is granted. Plaintiff is
permitted to file and maintain this action to conclusion
without prepayment of fees and costs. However, for the
reasons discussed below, the Court finds that the complaint
should be dismissed for lack of subject matter jurisdiction.
Court addresses plaintiff's complaint sua sponte
because “[f]ederal courts ‘have an independent
obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any
party,' and thus a court may sua sponte raise
the question of whether there is subject matter jurisdiction
‘at any stage in the litigation.'” 1mage
Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d
1044, 1048 (10th Cir. 2006) (quoting Arbaugh v. Y & H
Corp., 546 U.S. 500, 501 (2006)); see
Fed.R.Civ.P. 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”).
case, plaintiff is proceeding pro se and, consistent
with Supreme Court and Tenth Circuit precedent, the Court
will construe his pro se pleadings liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972);
Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.
2002). Plaintiff asserts a cause of action under 42 U.S.C.
§ 1983. A determination of subject matter jurisdiction
under § 1983 is closely related to a determination of
the claim on the merits since the Court's ability to hear
a § 1983 claim does not arise from the statute itself,
but rather arises because a violation of a federal
constitutional right creates jurisdiction under other
statutes. See Hagans v. Lavine, 415 U.S. 528, 535
(1974). Under a § 1983 rubric, the Court must determine
whether plaintiff has sufficiently alleged facts that make
out a federal constitutional violation such that federal
subject matter jurisdiction exists.
purports to assert claims under the United States
Constitution. Specifically, plaintiff alleges that defendants
violated his rights under the First Amendment, Fourth
Amendment, Fifth Amendment, and Fourteenth Amendment,
including his right to equal protection. Dkt. # 1, at 4-5. In
terms of the facts underlying the alleged constitutional
claims, plaintiff asserts that defendants “defamed and
libeled plaintiff with false statements and false evidence,
” invaded his privacy, and committed negligence per
se, by publicly filing arrest records in a state court
proceeding in the Tulsa County District Court, No.
MI-2018-11. Id. at 1, 5. Plaintiff alleges that the
arrest records had been sealed in a prior state court
proceeding and were subject to an expungement order.
Plaintiff alleges that, as a result, he has suffered damage
to his “public and personal reputation and
character.” Id. at 4, 6.
construing plaintiff's complaint liberally, it cannot be
read to assert a constitutional violation. Although plaintiff
complains that defendants' filing of a sealed document
resulted in defamation, libel, an invasion of privacy, and
negligence per se, none of this can state a
constitutional violation. First, it is well-established that
“[d]efamation, by itself, is a tort actionable under
the laws of most States, but not a constitutional
deprivation.” Siegert v. Gilley, 500 U.S. 226,
233 (1991). Therefore, plaintiff's allegation that he was
defamed is insufficient to allege a constitutional violation.
Second, the tort of defamation encompasses libel.
See Restatement (2d) of Torts § 558 (1977). The
term “libel” simply refers to the publication of
defamatory matter by written, as opposed to oral, means.
Accordingly, plaintiff's allegation that defendants
committed libel, which is merely a type of defamation, is
also insufficient to allege a constitutional violation.
Similarly, the tort of “negligence per
se” does not arise under federal law, nor does it
establish a constitutional violation. Therefore,
plaintiff's allegation that defendants committed
“negligence per se” is
insufficient to allege a federal constitutional or statutory
plaintiff alleges that his constitutional rights were
violated because the filing of the sealed records constituted
an “invasion of privacy.” In Nilson v. Layton
City, 45 F.3d 369 (10th Cir. 1995), the Tenth Circuit
addressed whether individuals have a legitimate expectation
of privacy in records that are subject to an expungement
order. The Tenth Circuit explained that
Information readily available to the public is not protected
by the constitutional right to privacy. Consequently,
government disclosures of arrest records, . . . judicial
proceedings, . . . and information contained in police
reports. . . do not implicate the right to privacy. . . .
[An] expungement order does not change this conclusion. An
expungement order does not privatize criminal activity. While
it removes a particular arrest and/or conviction from an
individual's criminal record, the underlying object of
expungement remains public. Court records and police blotters
permanently document the expunged incident, and those
officials integrally involved retain knowledge of the event.
An expunged arrest and/or conviction is never truly removed
from the public record and thus is not entitled to privacy
Id at 372. Because plaintiff does not have a
legitimate expectation of privacy in his arrest records,
despite the expungement order, the Court finds that plaintiff
has failed to allege facts sufficient to make out a
constitutional violation of his right to privacy.
plaintiff simply has not stated a federal constitutional
deprivation. If any claim is actually raised by plaintiff in
this case, it arises under state tort law and not under the
rights protected by the Constitution. Because the complaint
does not allege any constitutional violation or other
violation of federal law, plaintiff has no claim over which
this Court has jurisdiction. Regardless of plaintiff s
pro se status, the Court cannot permit plaintiff to
proceed with the lawsuit when the Court lacks subject matter
jurisdiction over his claims.
IS THEREFORE ORDERED that plaintiffs motion for
leave to proceed in forma pauperis (Dkt. # 2) is
granted, and he does not owe the filing fee.
IS FURTHER ORDERED that plaintiffs complaint (Dkt. #
1) is dismissed for lack of subject matter
jurisdiction. A separate ...