United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss pursuant to Rule 12(b)(6) (Doc. No. 6). The motion is
fully briefed and ready for disposition. For the following
reasons, the motion will be granted.
purpose of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) is to test the legal sufficiency of the
complaint. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Although pro se complaints are to be
construed liberally, “they still must allege sufficient
facts to support the claims advanced.” Stringer v.
St. James R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir.
2006) (quoting Stone v. Harry, 364 F.3d 912, 914
(8th Cir. 2004)). “[P]ro se litigants must set [a
claim] forth in a manner which, taking the pleaded facts as
true, states a claim as a matter of law.” Id.
(quoting Cunningham v. Ray, 648 F.2d 1185, 1186 (8th
25, 2016, Plaintiff Maurice Williams, proceeding pro se,
filed a complaint against Defendants Progressive Insurance
Company, David Bowser and Katie Lade arising from the alleged
denial of a claim for a stolen car under his insurance policy
(Complaint (“Compl.”), Doc. No. 1). Plaintiff
alleges claims under the Americans with Disability Act
(“ADA”), the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act, 42 U.S.C.
§§1981, 1983, 1985, and violations of the First,
Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments.
Defendants move to dismiss Plaintiff's complaint for
failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
makes it unlawful to discriminate against people with
disabilities in employment, transportation, public
accommodation, communications, and governmental activities.
Plaintiff alleges no facts to support a claim under the ADA.
The ADA defines the term “disability” as: (A) a
physical or mental impairment that substantially limits one
or more of the major life activities of such individual; (B)
a record of such an impairment; or (C) being regarded as
having such an impairment. 42 U.S.C. § 12102(2).
Plaintiff does not allege in his complaint that he has a
physical or mental impairment, other than to state in his
background statement of facts that he has pain in his hip and
legs. Moreover, there are no allegations that Plaintiff's
hip and leg pain substantially limited him in any major life
activity, that he had a record of such impairment, or that
Defendants regarded him as having such an impairment. It is
also fatal to his ADA claim that Plaintiff has not alleged
that Defendants took adverse action against him, in other
words denied his insurance claim, on account of his hip and
leg pain. Thus, the Court finds Plaintiff has failed to state
a claim of disability discrimination under the ADA.
to strengthen criminal and civil remedies against organized
crime, RICO provides a private right of action for any person
who has been injured in his business or property from a RICO
violation. Dahlgren v. First Nat'l Bank of
Holdrege, 533 F.3d 681, 689 (8th Cir. 2008) (quoting 18
U.S.C. § 1964(c)). To state a RICO claim, Plaintiff must
show “(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” Nitro
Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 428 (8th
Cir. 2009) (internal quotation omitted). A RICO claim must be
pleaded with particularity under Rule 9(b). Crest Const.
II, Inc. v. Doe, 660 F.3d 346, 353 (8th Cir. 2011). Rule
9(b) requires that a party alleging fraud or mistake
“state with particularity the circumstances
constituting a fraud or mistake.” Fed.R.Civ.P. 9(b).
Plaintiff alleges no facts to support a RICO claim.
Plaintiff's complaint fails to allege the existence of a
RICO enterprise, a pattern of racketeering, multiple
predicate acts (i.e., mail fraud, wire fraud, use of
facilities of interstate commerce), and lacks the
particularity required of fraud-based claims by Rule 9(b).
U.S.C. §1981 prohibits intentional race discrimination
in the making and enforcing of contracts. Plaintiff
identifies himself as an “Afro-American male, ”
but otherwise makes no allegation that his race played any
role in the Defendants' handling of his claim.
U.S.C. § 1983 allows a person who has had any rights,
privileges, or immunities secured by the Constitution
violated by another, under the color of state law, to sue the
violator for damages. To state a § 1983 claim, a
plaintiff must allege that he was injured by either a state
actor or a private party acting under color of state law.
Schmidt v. City of Bella Villa, 557 F.3d 564, 571
(8th Cir. 2009). Plaintiff's complaint fails to allege
facts that could establish that Defendants are state actors
or acted under color of state law. Moreover, it is well
established that private insurers are not state actors for
purposes of a Section 1983 claim. See American
Manufacturers Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52
U.S.C. § 1985 is a federal cause of action for recovery
when there is a conspiracy to deprive a person of civil
rights. In order to state a claim for conspiracy under §
1985, a plaintiff “must allege with particularity and
specifically demonstrate with material facts that the
defendants reached an agreement.” Kelly v. City of
Omaha, 813 F.3d 1070, 1078 (8th Cir. 2016) (quoting
City of Omaha Emps. Betterment Ass'n v. City of
Omaha, 883 F.2d 650, 652 (8th Cir. 1989)). This standard
requires that “allegations of a conspiracy [be] pleaded
with sufficient specificity and factual support to suggest a
meeting of the minds directed toward an unconstitutional
action.” Id. (quoting Nelson v. City of
McGehee, 876 F.2d 56, 59 (8th Cir. 1989)). Here,
Plaintiff alleges in a conclusory manner that Defendants
conspired, among other things, to deny his insurance claim,
terminate a rental vehicle, deny his access to the courts,
and deprive him of his “equal rights under the law,
” but his complaint fails to allege specific facts
showing that any of the Defendants' alleged misconduct
arose from any such meeting of minds.
determined that the allegations of Plaintiff's complaint
do not support federal question jurisdiction in this case,
the Court considers whether Plaintiff adequately asserts a
basis for the Court to exercise diversity of citizenship
jurisdiction over his claims. To establish diversity
jurisdiction under 28 U.S.C. § 1332(a), the party
asserting jurisdiction must show complete diversity of
citizenship among the parties and an amount in controversy
exceeding $75, 000. In this regard, Plaintiff must
specifically allege each party's citizenship to show that
Plaintiff and Defendants are citizens of different states.
Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th
Cir. 1987). It is well established that when jurisdiction
depends upon diversity, the absence of sufficient averments
or facts in the record showing such required diversity of
citizenship is fatal and cannot be overlooked by the Court.
Id.; see also Poling v. K. Hovnanian
Enters., 99 F.Supp.2d 502, 515 (D.N.J. 2000) (“The
court can only ‘properly determine whether complete
diversity of the parties in fact exists and thus whether the
court has jurisdiction to adjudicate the matter[, ]' when
the plaintiff, even if proceeding pro se, affirmatively
pleads facts regarding the citizenship of individual
defendants and the dual citizenship of corporate
defendants.”) Because Plaintiffs complaint is silent as
to the citizenship of the parties, and complete diversity of
citizenship is not apparent from the pleadings, the Court
cannot exercise jurisdiction over this case under 28 U.S.C.
§ 1332. See Sanders, 823 F.2d at 216.
careful review of Plaintiff s pro se Complaint, the Court
will grant Defendants' motion to dismiss. To the extent
Plaintiffs complaint can be liberally construed as alleging a
state law breach of contract claim, such a claim cannot serve
as a sufficient basis for subject matter jurisdiction in this
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss
 is GRANTED. A separate judgment of dismissal will
accompany this Memorandum and Order.