Garcia v. Keffer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DIEGO IVAN GARCIA,
Plaintiff,
v.
DUSTIN W. KEFFER, et al.,
Defendants.
Case No. 26-2015-DDC-ADM
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND
REPORT AND RECOMMENDATION OF DISMISSAL
On January 12, 2026, pro se plaintiff Diego Ivan Garcia (“Garcia”) filed this case
purporting to assert a personal injury/medical malpractice claim against defendants Dr. Dustin W.
Keffer and Advent Health Shawnee Mission Hospital. (ECF 1.) At the same time, he moved for
leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. (ECF 4.) As discussed
in further detail below, the court grants Garcia leave to proceed IFP, but recommends that the
district judge dismiss his complaint for lack of subject matter jurisdiction.
I. GARCIA MAY PROCEED IFP
Title 28 U.S.C. § 1915 allows courts to authorize commencing a civil action “without
prepayment of fees or security therefore, by a person who submits an affidavit that . . . the person
is unable to pay such fees or give security therefore.” Proceeding IFP “in a civil case is a privilege,
not a right—fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998).
The decision to grant or deny IFP status under § 1915 lies within “the sound discretion of the
district court.” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). The court has
carefully reviewed the financial affidavit Garcia provided in support of his motion (ECF 4-1), and
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the court finds that Garcia is unable to pay the filing fee required to commence this civil action.
The court therefore waives the filing fee and grants Garcia leave to proceed IFP.
II. THE COURT RECOMMENDS DISMISSING GARCIA’S COMPLAINT
A. Legal Standards
When a plaintiff proceeds IFP, the court may screen the complaint under § 1915(e)(2)(B).
The court may dismiss the complaint if it determines that the action “(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The purpose of
§ 1915(e)(2) is to “discourage the filing of, and waste of judicial and private resources upon,
baseless lawsuits that paying litigants generally do not initiate.” Buchheit v. Green, 705 F.3d 1157,
1161 (10th Cir. 2012).
In addition, “[i]f the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.” FED. R. CIV. P. 12(h)(3). “[F]ederal courts are courts of limited
subject-matter jurisdiction,” and they “may only hear cases when empowered to do so by the
Constitution and by act of Congress.” Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir.
2015) (quotation omitted). To proceed in federal court, a plaintiff has the burden to establish
subject-matter jurisdiction, which is ordinarily accomplished through diversity jurisdiction under
28 U.S.C. § 1332 or federal-question jurisdiction under 28 U.S.C. § 1331. Diversity jurisdiction
exists where the parties have complete diversity of citizenship and the amount in controversy
exceeds $75,000. 28 U.S.C. § 1332. Federal-question jurisdiction exists where claims arise under
the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
To determine whether a plaintiff has adequately alleged subject-matter jurisdiction, the
court looks to the face of the complaint. Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519,
1521 (10th Cir. 1991). Although the court liberally construes a pro se plaintiff’s pleadings, it does
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not assume the role of his advocate, and it may not “supply additional factual allegations to round
out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” McCoy v. Kansas,
No. 16-2129-JAR, 2016 WL 3549100, at *2 (D. Kan. June 30, 2016) (citations omitted); see also
Tatten v. City & Cty. of Denver, 730 F. App’x 620, 624 (10th Cir. 2018).
B. Analysis
In screening Garcia’s form complaint, the court finds it does not clearly establish this
court’s subject-matter jurisdiction. Garcia did not provide any information or check any boxes on
the form complaint to allege that this court has subject matter jurisdiction over his lawsuit. To the
contrary, Garcia alleges that he is “a citizen of the State of Kansas” and that the first-named
defendant and second-named defendant are each “a citizen of the State of Kansas; or a corporation
incorporated under the laws of the state of Kansas.” (ECF 1, at 2.) That means that all parties are
alleged to be Kansas citizens. Grynberg v. Kinder Morgan Energy Partners, L.P., 805 F.3d 901,
905 (10th Cir. 2015) (observing that “a corporation is a citizen of its state of incorporation and the
state where its principal place of business is located”) (citing 28 U.S.C. § 1332(c)(1)); see also
Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010). As a result, Garcia cannot show complete diversity
between the parties as required to establish diversity jurisdiction. Middleton v. Stephenson, 749
F.3d 1197, 1200 (10th Cir. 2014) (“[D]iversity jurisdiction exists only if no plaintiff and no
defendant are citizens of the same state . . . .”).
Nor does Garcia allege federal question jurisdiction. He did not check the box on the form
complaint that this court has jurisdiction over this case under the U.S. Constitution or a federal
statute such as 28 U.S.C. § 1331 or 28 U.S.C. § 1343. Nor did he cite any other statute that may
give rise to federal jurisdiction over his claims. (See ECF 1, at 3.) To the contrary, the only
grounds identified in the complaint are KAN. STAT. ANN. §§ 65-4901 and 60-513. (Id.) These are
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Kansas statutes, not federal statutes. Accordingly, Garcia has not alleged any basis for federal
question jurisdiction.
C. Conclusion
For the reasons explained above, the court recommends that the district judge dismiss this
case because Garcia’s complaint does not allege a basis for the court’s subject matter jurisdiction.
* * * * *
Pursuant to 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b)(2), and D. KAN. RULE 72.1.4(b),
Garcia may file written objections to this report and recommendation within fourteen days after
being served with a copy. If Garcia fails to file objections within the fourteen-day time period, no
appellate review of the factual and legal determinations in this report and recommendation will be
allowed by any court. See In re Key Energy Res. Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000).
IT IS THEREFORE ORDERED that Garcia’s Motion for Leave to Proceed IFP (ECF 4)
is granted.
IT IS FURTHER RECOMMENDED that Garcia’s complaint be dismissed for the
reasons set forth above.
IT IS FURTHER ORDERED that the clerk’s office mail a copy of this Order and Report
and Recommendation to Garcia via regular mail and certified mail, return receipt requested.
IT IS SO ORDERED.
Dated February 12, 2026, at Kansas City, Kansas.
s/ Angel D. Mitchell
Angel D. Mitchell
U.S. Magistrate Judge
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