United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court is plaintiff's complaint (Dkt. # 2) and
plaintiff's Motion for Leave to Proceed In Forma
Pauperis and Supporting Affidavit (Dkt. # 3). Plaintiff
is proceeding pro se and, consistent with Supreme
Court and Tenth Circuit precedent, the Court will construe
her pro se pleading liberally. See, e.g.,
Haines v. Kerner, 404 U.S. 519, 520 (1972);
Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.
2002). On July 8, 2019, plaintiff filed a pro se
complaint alleging that she was wrongfully evicted by
deputies of the Tulsa County Sheriff's Office after she
obtained a “USBC Form 101-A” that provided a 30
day stay of any eviction proceedings against her. Dkt. # 2,
at 4. The form referenced by plaintiff is a form provided by
bankruptcy courts, and it permits a debtor to stay in her
residence for up to 30 days in certain instances. Plaintiff
claims that defendants violated her constitutional rights
“through acts of negligence, malfeasance, and gross
violation and illegal misrepresentation of USBC eviction
law.” Dkt. # 2, at 4. She alleges that the eviction
took place on July 1, 2019, even though she had obtained a
Form 101-A that provided a 30 day stay of her eviction.
Id. Plaintiff claims that she is now homeless, and
she seeks damages in excess of $200, 000. Id. at 6.
has filed a bankruptcy case in the Northern District of
Oklahoma, but the bankruptcy court has entered an order
confirming that no automatic stay is in effect. In re
Stacy Renae Hightower, Dkt. # 24, No. 19-11233-M (Bankr.
N.D. Okla. June 26, 2019). In particular, the order confirms
that there is no stay as to the real property from which
plaintiff claims she was wrongfully evicted in her complaint
in this case. Id. The bankruptcy court's order
was entered before plaintiff was allegedly evicted on July 1,
courts are courts of limited jurisdiction, and there is a
presumption against the exercise of federal jurisdiction.
Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th
Cir. 2005); Penteco Corp. Ltd. Partnership--1985A v.
Union Gas System, Inc., 929 F.2d 1519, 1521 (10th Cir.
1991). The party invoking federal jurisdiction has the burden
to allege jurisdictional facts demonstrating the presence of
federal subject matter jurisdiction. McNutt v. General
Motors Acceptance Corp. of Indiana, Inc., 298 U.S. 178,
182 (1936) (“It is incumbent upon the plaintiff
properly to allege the jurisdictional facts, according to the
nature of the case.”); Montoya v. Chao, 296
F.3d 952, 955 (10th Cir. 2002) (“The burden of
establishing subject-matter jurisdiction is on the party
asserting jurisdiction.”). The Court has an obligation
to consider whether subject matter jurisdiction exists, even
if the parties have not raised the issue. The Tenth Circuit
has stated that “[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.
asserts that the Court has federal question jurisdiction over
this case, because she is seeking relief under 42 U.S.C.
§ 1983. Dkt. # 2, at 3. However, § 1983 merely
provides a cause of action when a plaintiff's
constitutional rights have been violated, and § 1983
does not create any substantive rights. To state a claim
under § 1983, a plaintiff must show that his or her
constitutional rights were violated by a person acting under
the color of state law. West v. Atkins, 487 U.S. 42,
48 (1988). Plaintiff argues that she was evicted in violation
of an order of the bankruptcy court that permitted her to
remain in her residence for up to 30 days. Plaintiff makes a
general allegation that defendant's conduct violated her
constitutional rights, but she has not identified any
specific provision of the Constitution that is at issue in
this case. Dkt. # 2, at 4-5. Eviction and foreclosure are
generally matters of state law, and the Supreme Court has
expressly rejected the notion that the Constitution provides
any substantive landlord-tenant law. Lindsey v.
Normet, 405 U.S. 56, 68 (1972). Plaintiff has not made
any allegations that she has been evicted for a prohibited
reason, such as racial discrimination, and the most
reasonable inference from her allegations is that she has
been evicted from certain property due to non-payment of
rent. If plaintiff believes that she was evicted in violation
of a bankruptcy court order, her remedy is to ask the
bankruptcy court to enforce its own order and resolve the
dispute between the parties, but the Court has found no
authority suggesting the violation of a bankruptcy court
order or an automatic stay would constitute a violation of
the Constitution. The Court finds no basis to exercise
federal question jurisdiction over this case, and
plaintiff's claims should be dismissed for lack of
subject matter jurisdiction.
IS THEREFORE ORDERED that the complaint (Dkt. # 1)
is hereby dismissed without prejudice. A
separate judgment of dismissal is entered herewith.
IS FURTHER ORDERED that plaintiffs Motion for Leave
to Proceed In Forma Pauperis and ...