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McNeely v. Crosswhite

United States District Court, N.D. Alabama, Southern Division

November 19, 2014

JERRY WAYNE MCNEELY, Plaintiff,
v.
MARK CROSSWHITE, as President and CEO of Alabama Power Company, et al., Defendants

Jerry Wayne McNeely, sui juris, Plaintiff, Pro se, Bessemer, AL.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

STACI G. CORNELIUS, UNITED STATES MAGISTRATE JUDGE.

Pro se Plaintiff, Jerry Wayne McNeely, has filed a complaint against Mark Crosswhite, as the President and CEO of Alabama Power Company, and Twinkle Andres Cavanaugh, as the President of the Alabama Public Service Commission (the " PSC").[1] Plaintiff asserts claims under the First, Fourth, Fifth, Thirteenth, and Fourteenth Amendments, 42 U.S.C. § § 1983 and 1985, 18 U.S.C. § § 241 and 242, and a variety of state law theories. (Doc. 1 at 1). Plaintiff seeks monetary damages and injunctive relief.[2] As explained below, the complaint is due to be dismissed in its entirety for lack of federal subject matter jurisdiction.

I. FACTS

The complaint arises from a dispute between Plaintiff and Alabama Power. The dispute culminated when electrical service to Plaintiff's home was terminated in October 2014 Plaintiff, who describes himself as an " ordained Itinerate Elder of ecclesia" (Doc. 1 at 3), claims his religious beliefs preclude and excuse him from paying utility bills and more generally asserts " that Christians by their very nature cannot pay rates and be held responsible for a debt or suffer consequences for failure to pay utility rates." (Doc. 1 at 5). Plaintiff claims he is only " responsible for paying the actual cost of the service to his house at his location up to the total actual incremental cost" of providing power. (Doc. 1 at 9). However, Plaintiff asserts he should not have to pay " public rates" or taxes. (Id.).

In June 2014, Plaintiff began receiving " unwanted solicitation threatening in nature" --presumably demands for payment from Alabama Power. (Doc. 1 at 4). Plaintiff responded in writing, asserting his claimed religious exemption and demanding to be left alone. (Doc. 1 at 4). Despite Plaintiff's claimed religious exemption, Alabama Power continued to send letters demanding payment. (Doc. 1 at 4-6). Sometime after September 29, 2014, " electric utility vehicles accompanied by Jefferson County Sheriff vehicle" approached Plaintiff's home and blocked traffic. (Doc. 1 at 6). An unknown man exited the utility truck, opened plaintiff's fence, and removed an electric meter attached to the home. (Doc. 1 at 6). Plaintiff's power went out, but power was restored after the unknown utility worker attached a new meter to the home. (Doc. 1 at 6-7). On October 17, 2014, electrical service to Plaintiff's home was terminated. (Doc. 1 at 7). Plaintiff's electrical appliances and computers stopped working, and Plaintiff began to experience headaches and difficulty sleeping. (Doc. 1 at 7). On at least one occasion, Plaintiff stumbled and fell in the dark, injuring his head and " various parts of our bodies." (Doc. 1 at 7).

Plaintiff called Alabama Power and the PSC to advise them his power was not working. (Doc. 1 at 7). The complaint alleges that, during these calls, representatives of the defendants " seemed to laugh" or " poke fun" at Plaintiff. (Doc. 1 at 7-8). Instead of accepting Plaintiff's claimed religious exemption, the defendants were " hostile" and hung up on Plaintiff. (Doc. 1 at 8). Plaintiff's requests to speak with Crosswhite and Cavanaugh were refused, and neither defendant responded to Plaintiff's voice messages. (Doc. 1 at 8). The complaint alleges that these actions " have produced a chilling effect on [Plaintiff's] enjoyment and engagement in federally protected rights and privileges." (Doc. 1 at 8).

By way of relief, Plaintiff requests the return of electrical service, a declaration that Plaintiff is not obligated to pay utility rates or taxes, and an award of compensatory damages, punitive damages, costs, and fees. (Doc. 1 at 12). Plaintiff has also requested an exemption from court costs and fees, which the undersigned construes as a motion to proceed in forma pauperis . (Doc. 1 at 12).

II. DISCUSSION

Federal courts have limited jurisdiction and are " obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking." Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005). If at any time it becomes clear that a federal court lacks subject matter jurisdiction, it " must dismiss the action." Federal Rules Of Civil Procedure 12(h)(3); see Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1240 (11th Cir. 2003). Where a federal court lacks subject matter jurisdiction, pre-answer sua sponte dismissal is appropriate. See Blankenship v. Gulf Power Co., 551 Fed.App'x 468, 471 (11th Cir. 2013). As explained below, there is no federal subject matter jurisdiction over any of Plaintiff's claims.

A. Federal Jurisdiction is Lacking Under Section 1331.

" The district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. However, a claim invoking federal law may be dismissed for lack of subject matter jurisdiction if it: (1) " clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction"; or (2) " is wholly insubstantial and frivolous." Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998) (quoting Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946). In order to qualify as " wholly insubstantial and frivolous, " a claim must be " devoid of plausible foundation" or there must be a prior Supreme Court decision clearly foreclosing the claim. Id.; see McGinnis ...


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