Madden v. Usry , 671 F. App'x 708 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 13, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ROBERT ALAN MADDEN,
Plaintiff - Appellant,
v. No. 16-6263
(D.C. No. 5:16-CV-00524-R)
BOB USRY PLUMBING, (W.D. Okla.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Robert Madden appeals from a district court order dismissing his complaint for
lack of subject matter jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
Madden filed a pro se prisoner complaint against Bob Usry Plumbing
(“Usry”), alleging non-payment of wages. He checked boxes on the complaint form
indicating jurisdiction under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
*
After examining the briefs 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). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The district court granted
Usry’s Fed. R. Civ. P. 12(b)(1) motion to dismiss. Madden timely appealed.
We review de novo a district court’s dismissal of a complaint for lack of
subject matter jurisdiction. Becker v. Ute Indian Tribe of the Uintah & Ouray
Reservation, 770 F.3d 944, 946 (10th Cir. 2014). Ordinarily, claims asserted under
§ 1983 or Bivens would qualify for federal question jurisdiction under 28 U.S.C.
§ 1331. See Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1023 (10th Cir. 2012)
(action arises under federal law if “federal law creates the cause of action”).
However, “jurisdiction under § 1331 exists only where there is a colorable claim
arising under federal law.” McKenzie v. U.S. Citizenship & Immigration Servs.,
Dist. Dir., 761 F.3d 1149, 1156 (10th Cir. 2014) (quotation omitted). “A claim can
be meritless while still being colorable, but a court may dismiss for lack of subject-
matter jurisdiction when the claim is so insubstantial, implausible, foreclosed by
prior decisions of this Court, or otherwise completely devoid of merit as not to
involve a federal controversy.” Id. (citation and quotation omitted).
Section 1983 provides a cause of action for the violation of a federal right by a
defendant acting under color of state law. Pierce v. Gilchrist, 359 F.3d 1279, 1285
(10th Cir. 2004). A Bivens claim is analogous to a § 1983 claim, but may be pursued
against federal officials. See Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1096-97
(10th Cir. 2005). Madden’s complaint does not provide any basis to conclude that
Usry acted under color of state or federal law, nor does it suggest Madden’s federal
rights were violated. We agree with the district court that Madden’s claims are so
2
insubstantial that they do not confer federal question jurisdiction. See McKenzie,
761 F.3d at 1156-57.
AFFIRMED. We GRANT Madden’s motion to proceed in forma pauperis,
and remind him of his obligation to continue making partial payments until the fees
are paid in full. See 28 U.S.C. § 1915(b).
Entered for the Court
Carlos F. Lucero
Circuit Judge
3