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
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 mater..
More
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This order and judgment is not binding precedent, except under the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-