The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendant's motion to dismiss the
The defendant, in support of his motion to dismiss, contends
that the Court does not have jurisdiction over the subject matter
of the instant complaint*fn* or in the alternative the complaint
fails to state a claim upon which relief can be granted.
It is the opinion of this Court that both it lacks subject
matter jurisdiction over the instant action and the plaintiff has
failed to state a claim upon which relief can be granted.
I. THIS COURT LACKS JURISDICTION OVER THE SUBJECT MATTER OF THE
It is clear from the caption of this action that there is no
diversity of citizenship between the parties since both plaintiff
and defendant are residents of the State of Illinois. Absent the
requisite diversity, jurisdiction may be conferred upon a federal
court only if an essential element of plaintiff's claim alleged a
federal question such as a deprivation of a right or immunity
created by the Constitution or the laws of the United States.
Campo v. Niemeyer, 182 F.2d 115 (7th Cir. 1950).
Federal jurisdiction could exist solely if the complaint is
read to allege a deprivation by defendant of a constitutionally
secured right, privilege or immunity by plaintiff cognizable
under the Civil Rights Act, 42 U.S.C. § 1983, 1985; therefore,
jurisdiction could exist by reason of the jurisdictional
counterpart to the Civil Rights Act, 28 U.S.C. § 1343.
However, 42 U.S.C. § 1985 applies to conspiracies and plaintiff
does not allege or even intimate any conspiracy involving
defendant. Section 1983 provides a civil remedy for the
deprivation of constitutional and civil rights but only where the
deprivation is alleged to have occurred solely and exclusively
under "color of state law." See Duzynski v. Nosal, 324 F.2d 924
(7th Cir. 1963); Campo v. Niemeyer, supra; Huey v. Barloga,
277 F. Supp. 864 (N.D. Ill. 1967). Section 1983 does not protect
individuals against individual invasion of constitutional rights
and the failure to allege that the conduct of the defendant which
is the subject matter of the complaint was done under "color of
state law" negates the existence of any jurisdictional basis
under 28 U.S.C. § 1343. Campo v. Niemeyer, supra; Vance v.
Robinson, 292 F. Supp. 786 (W.D.N.C. 1968); Pugliano v. Staziak,
231 F. Supp. 347 (W.D.Pa. 1964).
Even if this Court were to assume that the plaintiff has been
deprived of a constitutionally secured right, a liberal
construction of the complaint fails to show the necessary
requisites for subject matter jurisdiction in this Court.
II. PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN
Even if it could be assumed that the Court was vested with
jurisdiction over the subject matter of this complaint, it is
clear that plaintiff has failed to allege a claim upon which
relief can be granted.
If plaintiff has any federally cognizable claim for relief, it
must be pursuant to 42 U.S.C. § 1983 which provides a substantive
civil remedy for the deprivation of constitutionally protected
rights where the purported deprivation is alleged to have taken
place exclusively under ...