United States District Court, M.D. Alabama, Northern Division
December 11, 2014
NEKISHA S. ROBINSON, on behalf of O.Z.J., Plaintiff,
LILLY ALEXANDER, et. al., Defendants.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER, Magistrate Judge.
Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law (Doc. 7, filed October 1, 2014). For good cause, the Magistrate Judge recommends that this case be dismissed prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B).
The Plaintiff Nekisha S. Robinson, who is proceeding pro se, filed this action on September 9, 2014 against Lilly Alexander M.D. and Pro Assurance alleging that the parties committed medical malpractice by prescribing a cream for her son which caused him to suffer "permanent scarring in his scalp". (Doc. 1). Simultaneously with this Recommendation, this Court has entered an Order granting Plaintiff's application to proceed in forma pauperis. In forma pauperis proceedings are governed by 28 U.S.C.§ 1915 which requires this court to conduct a preliminary review of the complaint to ensure the action is not "frivolous or malicious, " "fails to state a claim on which relief can be granted, " or "seeks monetary relief against a defendant who is immune from such relief." See 28 U.S.C.§ 1915(e)(2)(B).
II. DISCUSSION AND ANALYSIS
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Thus, federal courts only have the power to hear cases as authorized by the Constitution or the laws of the United States, see Kokkonen, 511 U.S. at 377, and are required to inquire into their jurisdiction at the earliest possible point in the proceeding. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Every federal court operates under an independent obligation to ensure it is presented with the kind of concrete controversy upon which its constitutional grant of authority is based. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).
FED R. CIV. P. 12(h)(3) requires that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." This obligation on the court to examine its own jurisdiction continues at each stage of the proceedings, even if no party raises the jurisdictional issues and both parties are prepared to concede it. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). "It is axiomatic that a district court may inquire into the basis of its subject matter jurisdiction at any stage of the proceedings." See 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure 3522 (1975).
Plaintiff alleges that Defendants negligently provided medical treatment to her son by prescribing a cream which caused "permanent scarring in his scalp". These claims arise only under state law; therefore, her claims against the defendant do not rise to the level of a constitutional violation. See Daniels v. Williams, 474 U.S. 327, 332-34 (1986); Harris v. Birmingham Board of Education, 817 F.2d 1525 (11th Cir. 1987). A review of the complaint demonstrates that the plaintiff does not assert any viable federal or constitutional claims. Thus, the court does not have federal question jurisdiction over this matter. See 28 U.S.C. § 1331.
A federal district court may exercise subject matter jurisdiction over a civil action in which only state law claims are alleged if the civil action arises under the federal court's diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). The diversity statute confers jurisdiction on the federal courts in civil actions "between citizens of different states, " in which the jurisdictional amount is met. Id. To satisfy diversity, not only must a plaintiff be a citizen of a state other than the state of which one defendant is a citizen, but also, under the rule of "complete diversity, " no plaintiff may share the same state citizenship with any defendant. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). The complaint indicates that all of the parties in this case are citizens of the State of Alabama. Therefore, there is no basis for diversity jurisdiction. See 28 U.S.C. § 1332.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge as follows:
1. The plaintiff's state law claims be dismissed without prejudice prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B).
2. This case be DISMISSED pursuant to FED R. CIV. P. 12(b)(1) and 12(h)(3). without prejudice.
It is further ORDERED that the Plaintiff file any objections to the this Recommendation on or before December 29, 2014. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc ) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).