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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 v. Ingram Equip. Co., 918 F.2d 1491, 1494 (11th Cir. 1990) (en banc). As explained below, each of Plaintiff's claims invoking federal law are frivolous.

1. Plaintiff's Section 1983 Claims are Frivolous.

Section 1983 provides a basis for the recovery of monetary damages for violations of constitutional rights or federal laws. However, to invoke § 1983, the conduct complained of must have been committed by a person acting " under color of state law" and must have deprived a person of rights, privileges, or immunities afforded under the Constitution or laws of the United States. See, e.g., Duke v. Cleland, 5 F.3d 1399, 1403 (11th Cir.1993).

a. Plaintiff's 1983 Claim Against Crosswhite is Frivolous.

Normally, a private party does not act under color of state law, and is therefore not subject to section 1983 liability. Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992) (" Only in rare circumstances can a private party be viewed as a 'state actor' for section 1983 purposes."); see Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003) (" [T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.") (internal punctuation omitted).

A private party may, by acting with or through state officials, become allied with the state to qualify as acting under color of state law. Cobb v. Georgia Power Co., 757 F.2d 1248, 1250 (11th Cir. 1985). However, engagement in a government regulated business, without more, does not amount to a partnership between a business and the state. Id.; see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350-51, 95 S.Ct. 449, 42 L.Ed.2d 477(1974) (heavily regulated utility company's termination of plaintiff did not amount to state action); Fulton v. Hecht, 545 F.2d 540, 543 (5th Cir. 1977), cert. denied, 430 U.S. 984, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977) (extensive regulation did not render private kennel club a partner of the state).

Likewise, the mere presence of law enforcement officials when a private party allegedly violates an individual's rights does not transform the private wrong-doer's conduct into state action. Booker v. City of Atlanta, 776 F.2d 272, 273 (11th Cir. 1985) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir. 1980) (police officer's presence at scene of repossession did not confer jurisdiction, due to lack of state action)); Williams v. Goldsmith, 4 F.Supp.2d 1112, 1125 (M.D. Ala. 1998) (same).

Insofar as the complaint attempts to assert a section 1983 claim against Crosswhite, it names him in his capacity as president and CEO of Alabama Power. (Doc. 1 at 1). Plaintiff acknowledges Alabama Power is a private, " investor owned utility company." (Doc. 1 at 3). Plaintiff does not allege any facts suggesting Crosswhite or Alabama Power are state actors as defined under binding precedent. Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001). While the Complaint alleges that Alabama Power acts " under color of certificate or agreement with Alabama Public Service Commission, " (Doc. 1 at 3), state regulation alone does not render Alabama Power a state actor for purposes of section 1983. Jackson, 419 U.S.at 350-51; Cobb, 757 F.2d at 1250. Additionally, while the complaint alleges personnel from the Jefferson County Sheriff's Office were present when Plaintiff's electric meter was replaced, law enforcement officers' mere presence does not constitute state action. Booker, 776 F.2d at 273; Williams, 4 F.Supp.2d at 1125. Accordingly, none of the actions alleged in the complaint were taken under color of state law.

Moreover, even if the complaint could satisfy section 1983's requirement that the actions complained of were taken under color of state law, it does not allege a violation of Plaintiff's rights, privileges, or immunities under the Constitution or federal laws. While the complaint baldly alleges Plaintiff's rights were violated, it does not specify what right Plaintiff is invoking. The undersigned notes there is no federally protected right to receive electricity for free or at a reduced rate. However, the undersigned will not speculate which rights the Complaint is attempting to invoke. See Cooke v. Town of Colorado City, Ariz., 934 F.Supp.2d 1097, 1110 (D. Ariz. 2013).

Accordingly, for all of the reasons stated above, the section 1983 claim against Crosswhite is devoid of plausible foundation. See Reed v. Gulf Power Southern Co., No. 14-095, 2014 WL 1807038, *1-2 (N.D. Fla. May 7, 2014). This frivolous claim does not confer federal subject matter jurisdiction.

b. Plaintiff's 1983 Claim Against Cavanaugh is Frivolous.

In order to establish state action, a plaintiff " must show that the state is responsible for the specific conduct of which he complains." Carlin Communication, Inc., v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1357 (11th Cir. 1986). Aside from allegations regarding the PSC's role in regulating Alabama Power, the Complaint does even suggest, much less allege, that the PSC or Cavanaugh were responsible for the termination of electrical service at his home. Indeed, the complaint plainly states that Alabama Power unilaterally shut off Plaintiff's power. Accordingly, the section 1983 claim against Cavanaugh is devoid of plausible foundation. This frivolous claim does not confer federal subject matter jurisdiction.

2. Plaintiff's Claim Under the Ku Klux Klan Act is Frivolous.

Section 1985(3) sets forth three different types of claims. Section 1985(3)'s first clause provides a cause of action against private individuals who conspire to deny any person equal protection of the laws. Section 1985(3)'s second clause provides a cause of action for a conspiracy to prevent or hinder state authorities from giving or securing equal protection of the laws to persons within the state. Section 1985(3)'s third clause provides a cause of action for a conspiracy to interfere with federal elections. 42 U.S.C. § 1985(3). To prove a violation of § 1985(3) under the first two clauses, a plaintiff must show " some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

Accordingly, unlike section 1983, section 1985 provides a remedy for injuries resulting from purely private conduct; the lack of state action is not fatal to a claim under section 1985(3). Id. However, the Supreme Court has declined to decide " whether a conspiracy motivated by invidious discriminatory intent other than racial bias would be actionable." Id. at n.1. Courts addressing whether section 1985 prohibits religious discrimination have reached different conclusions: Compare Word of Faith World Outreach Center Church, Inc. v. Sawyer, 90 F.3d 118, 121 (5th Cir. 1996) (affirming dismissal of section 1985 claims based on religious discrimination); Kinniburgh v. Burlington Northern R. Co., 568 F.Supp. 655, 657 (D. Mont. 1983) (" discrimination on religious grounds may not be the subject of an action under Section 1985(3)"); with Ward v. Connor, 657 F.2d 45, 47-49 (4th Cir. 1981) (extending section 1985 to claims of religious discrimination).

In this case, the court need not determine whether a conspiracy motivated by religious discrimination provides a cause of action under section 1985. To state a claim under section 1985(3), a Plaintiff must allege (1) a conspiracy to go in disguise on the highway or on the premises of another; (2) for the purpose of depriving a person or class of persons of the equal protection of the law, or of equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy resulting in; (4) injury to the person or to property or deprivation of any of the rights or privileges of a citizen. See Griffin, 403 U.S. at 102-103.

Here, the complaint fails to allege a conspiracy between the defendants. The fact that the PSC regulates Alabama Power does not constitute a conspiracy between the two entities, much less a conspiracy between the two defendants named in this case. Instead, Plaintiff alleges Alabama Power unilaterally terminated his electrical service. Moreover, while the Plaintiff claims paying his power bill violates his religious beliefs, he does not allege that Alabama Power's independent termination of electrical services was motivated by religious discrimination. Instead, the complaint alleges Alabama Power cut off Plaintiff's power due to his failure to pay his utility bills. The principle of equal protection does not entitle Plaintiff to free electricity.

Accordingly, Plaintiff's claim under the Ku Klux Klan Act is devoid of plausible foundation. This frivolous claim does not confer federal subject matter jurisdiction. See, e.g., Deleo v. Rudin, 328 F.Supp.2d 1106, 1113 (D. Nev. 2004).

3. Plaintiff's Thirteenth Amendment Claim is Frivolous.

Plaintiff also invokes the Thirteenth Amendment, which abolished slavery and involuntary servitude. While the Thirteenth Amendment may reach purely private conduct, " [a]ll Circuit Court of Appeals cases addressing direct claims under the Thirteenth Amendment concern forced labor through physical or legal coercion, which directly implicates the prohibition against involuntary servitude." Powers v. CSX Transp., Inc., 105 F.Supp.2d 1295, 1302-03 (S.D. Ala. 2000) (quoting Crenshaw v. City of Defuniak Springs, 891 F.Supp. 1548, 1556 n.7 (N.D. Fla. 1995). In order to state a direct claim under the Thirteenth Amendment, a plaintiff must allege he was forced to perform services involuntarily. See Terry Properties, Inc. v. Standard Oil Co., 799 F.2d 1523, 1534-36 (11th Cir. 1986).

Here, Plaintiff's invocation of the Thirteenth Amendment is apparently based on his belief that paying his power bill constitutes slavery. (Doc. 1 at 5) (paying Alabama Power would constitute " being forever bound in a master-slave relationship forced to work and pay tribute to government and man"); (Id. at 8) (Plaintiff " could not comply with [Alabama Power's] request to injure ourselves and give allegiance to a new master over without or [con]sent and pay tribute to the oppressor of God's people"); (Id. at 9) (paying utility bill would make Plaintiff a " slave[] for standing on [his] own right to act in accordance with [his] conscience"); (Id. at 11) (payment " would require [Plaintiff] to agree to make installments and be subjected to be a slave to the utility companies for life").

While Plaintiff has nominally claimed involuntary servitude, he has alleged nothing to indicate that he has performed services for Alabama Power or any named defendant against his will. See Terry Properties, 799 F.2d at 1534-36. Instead, Plaintiff has stated his belief that paying his power bill would render him a slave. This claim is devoid of plausible foundation; it is frivolous and does not confer federal subject matter jurisdiction.

4. Plaintiff's Claims Invoking Other Amendments are Frivolous.

The complaint also alleges violations of Plaintiff's rights under the First, Fourth, Fifth, and Fourteenth Amendments. However, these Amendments only protect individuals from state action; they do not reach purely private conduct. See Harris v. Quinn, 134 S.Ct. 2618, 2628 n.4, 189 L.Ed.2d 620 (2014) (" the First Amendment does not restrict private conduct"); Parker v. Atlanta Gas Light Co., 818 F.Supp. 345, 348 (S.D. Ga. 1993) (absent state action, no relief is available under Fourth and Fifth Amendment); Jackson, 419 U.S. at 349 (state action required to state a claim under the Fourteenth Amendment). As set forth above in Section II.A.1., Plaintiff has not alleged any state action. Accordingly, to the extent Plaintiff invokes the above-listed Amendments, the claims are devoid of plausible foundation. These frivolous claims do not confer federal subject matter jurisdiction.

5. Criminal Statutes Do Not Afford a Private Right of Action.

The complaint also invokes 18 U.S.C. § § 241 and 242. These criminal statutes do not provide a private right of action. E.g. Abram-Adams v. Citigroup, Inc., 491 Fed.App'x 972, 974 (11th Cir. 2012); Anderson v. Dunbar Armored, Inc., 678 F.Supp.2d 1280, 1327 (N.D.Ga. 2009). Accordingly, Plaintiff's claims under these criminal statutes are frivolous.

B. Jurisdiction is Lacking Under Section 1332.

To invoke a federal court's diversity jurisdiction, a complaint must allege complete diversity of citizenship between the parties and an amount in controversy exceeding $75, 000. 28 U.S.C. § 1332. Here, Plaintiff cannot satisfy the complete diversity requirement because all of the parties are citizens of Alabama for purposes of diversity jurisdiction.

Plaintiff has not pled complete diversity of citizenship. Indeed, Plaintiff has not fully alleged his own citizenship for diversity purposes. Instead, the complaint states Plaintiff is a " private citizen residing in his home near Alabama." (Doc. 1 at 3). The complaint lists Plaintiff's mailing address as " 1331 25th Place, Bessemer, Alabama." (Doc. 1 at 12). The undersigned construes the complaint as alleging that Plaintiff is a citizen of Alabama for purposes of diversity jurisdiction.[3] Accordingly, if any of the defendants are citizens of Alabama, complete diversity of the parties is lacking. Here, the complaint alleges: (1) Crosswhite is " believed to reside in Jefferson County, Alabama"; (2) Cavanaugh is " Believed to live in Alabama"; and (3) Alabama Power is " an investor owned utility company having an office in Birmingham, Alabama." (Doc. 1 at 3-4). Moreover, the complaint alleges the named Defendants reside within this district. (Doc. 1 at 3). Accordingly, even minimal--much less complete--diversity of citizenship is lacking here.[4] Simply put, federal diversity jurisdiction is nonexistent.

C. Supplemental Jurisdiction is not Warranted.

The complaint also invokes federal supplemental jurisdiction under 28 U.S.C. § 1367. Any claims Plaintiff may have would sound in state law. However, as explained above, Plaintiff does not have any non-frivolous federal claims. Accordingly, the undersigned declines to recommend exercising supplemental jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (" federal court should decline the exercise of jurisdiction by dismissing the case without prejudice" when only state-law claims remain).

III. CONCLUSION AND RECOMMENDATION

Consistent with the foregoing report, the undersigned RECOMMENDS: (1) the Plaintiff's request to proceed in forma pauperis (Doc. 1 at 12) be GRANTED; and (2) this matter be DISMISSED WITHOUT PREJUDICE in its entirety for lack of federal subject matter jurisdiction.

NOTICE OF RIGHT TO OBJECT

Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any facts or legal arguments also must be included. Failure to do so will bar any later challenge or review of the magistrate judge's factual findings or legal conclusions. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435(1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc).

To challenge the magistrate judge's factual findings or legal conclusions, a party must file with the clerk of the court written objections specifically identifying the factual findings or legal conclusions to which objection is made and the specific basis for objection. The filing of objections is not a proper vehicle through which to make new allegations or present additional evidence. Furthermore, it is not necessary for a party to repeat legal arguments in objections. A copy of the objections must be served on all other parties to the action.

On receipt of objections meeting the foregoing specificity requirement, a district judge shall make a de novo determination of those portions of the report and recommendation to which objection is made and may accept, reject, or modify in whole or in part, the magistrate judge's factual findings or legal conclusions. The district judge, however, need conduct a hearing only in his or her discretion or if required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions. Objections not meeting the foregoing specificity requirement will not be considered by a district judge.

A party may not appeal a magistrate judge's report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.


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