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McBride v. Doe, 02-6378 (2003)

Court: Court of Appeals for the Tenth Circuit Number: 02-6378 Visitors: 5
Filed: Jul. 29, 2003
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 29 2003 TENTH CIRCUIT PATRICK FISHER Clerk JOE R. McBRIDE, Plaintiff - Appellant, No. 02-6378 v. (D.C. No. 02-CV-1128 -M) (W.D. Oklahoma) JOHN DOE; BIG BROTHER BIG SISTER PROGRAM, Defendants - Appellees. ORDER AND JUDGMENT * Before TACHA, Chief Judge , McKAY and McCONNELL , Circuit Judges. After examining the brief and appellate record, this panel has determined unanimously that oral argument would not mate
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                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JUL 29 2003
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 JOE R. McBRIDE,

                  Plaintiff - Appellant,
                                                          No. 02-6378
 v.                                                (D.C. No. 02-CV-1128 -M)
                                                       (W.D. Oklahoma)
 JOHN DOE; BIG BROTHER BIG
 SISTER PROGRAM,

                  Defendants - Appellees.


                               ORDER AND JUDGMENT          *




Before TACHA, Chief Judge , McKAY and McCONNELL , Circuit Judges.


       After examining the brief 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). This case is

therefore submitted without oral argument.

       Plaintiff Joe R. McBride, who at the time of filing this appeal was an

Oklahoma state prisoner, brought this action in federal court under a claim of


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
diversity jurisdiction, 28 U.S.C. § 1332(a). He alleges that when he was between

nine and eleven years old, he was sexually assaulted by a man named “Scott,”

who was his mentor in the Big Brother Big Sister Program (“the Program”).

Defendants are the Program and “Scott,” who is denominated in the caption as

“John Doe.” In his complaint, Plaintiff alleged that “Scott” had “moved out of

state” but made no allegations regarding the citizenship, state of incorporation, or

principal place of business of the Program.

       The district court adopted the report and recommendation of the magistrate

judge, and dismissed the action for want of subject matter jurisdiction, holding

that Plaintiff “has failed to present sufficient factual allegations demonstrating

diversity of citizenship” with regard to Defendant “Scott.” Although the district

court focused on the lack of jurisdictional allegations regarding “Scott,” we

affirm on the basis of a lack of jurisdictional allegations referring to the Program.

       “The party seeking the exercise of jurisdiction in his favor ‘must allege in

his pleading the facts essential to show jurisdiction.’”    Penteco Corp. v. Union

Gas Sys., Inc ., 
929 F.2d 1519
, 1521 (10th Cir. 1991), quoting      McNutt v. General

Motors Acceptance Corp. , 
298 U.S. 178
, 189 (1936). When suing multiple

defendants in a diversity action, the plaintiff bears the burden of proving that

diversity jurisdiction exists for each defendant.     United States ex. rel. General

Rock & Sand Corp. v. Chuska Dev. Corp.        , 
55 F.3d 1491
, 1495 (10th Cir. 1995).


                                             -2-
       Plaintiff’s filings, both before the district court and before this court,

contain no information from which it can be determined whether diversity exists.

Plaintiff fails to allege what type of entity the Program is or whether he is suing

the local, regional, or national branch of the Program. More significantly,

Plaintiff has not alleged the Program’s citizenship, state of incorporation, or

principal place of business, and thus fails to carry his burden of establishing

diversity with regard to each of the named defendants.

       Although we are mindful of our duty to construe the allegations of      pro se

litigants liberally, Plaintiff’s filings lack even the most minimal assertions

required to establish jurisdiction in federal court. We find that dismissal is

warranted despite Plaintiff’s   pro se status. See Meyerson v. Harrah’s East

Chicago Casino , 
299 F.3d 616
, 617 (7th Cir. 2002) (dismissing      pro se lawsuit for

lack of subject matter jurisdiction when plaintiff failed to allege citizenship of

defendants).

       We therefore AFFIRM the district court’s dismissal of the complaint. We

DENY Plaintiff’s motion to proceed without prepayment of the appellate filing

fee. Plaintiff must make immediate payment of the unpaid balance due.



                                                 Entered for the Court

                                                 Michael W. McConnell
                                                 Circuit Judge

                                           -3-

Source:  CourtListener

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