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Dalton v. Herrin

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

March 4, 2015

TONY R. DALTON, Plaintiff,
v.
ROBERT EARL HERRIN, et al., Defendants.

REPORT AND RECOMMENDATION

WILLIAM E. CASSADY, Magistrate Judge.

Plaintiff, who is proceeding pro se, filed a self-styled complaint and a motion to proceed without prepayment of fees. (Docs. 1, 2). Plaintiff's motion to proceed without prepayment of fees has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(1). Local Rule 72.2(c)(1) provides for the automatic referral of a non-dispositive pretrial matter, such as plaintiff's motion to proceed without prepayment of fees, to a Magistrate Judge. The consideration of this motion requires the Magistrate Judge to screen plaintiff's action pursuant to 28 U.S.C. § 1915(e)(2)(B).[1] Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (applying § 1915(e) to non-prisoner actions).[2] After screening the present action, it is recommended that this action be dismissed for lack of subject matter jurisdiction.

I. Nature of Proceedings.

Plaintiff named four defendants in his brief complaint: Mr. Robert Earl Herrin, Exalted Ruler of Elks Lodge #2782, Foley, Alabama ("lodge"); Mr. Frank Rohe, President of the Alabama Elks Association; Mr. Robert Eddings, member of the lodge's Board of Directors; and Ms. Debbie Osborne, Mr. Herrin's lady friend. (Doc. 1 at 1). It is alleged that defendant Herrin appointed plaintiff and Mr. Henry P. Glass to the house committee, which oversees the lodge's operations. ( Id. ). At that time, defendant Herrin told them "that members of lodge # 2782, preferred not to have people of color nominated for membership at [that location], meaning [A]frican [A]mericans, Mexicans, etc." ( Id. ). In June and July, 2013, plaintiff and his wife began inviting their daughter Amber and her husband, an African-American, to visit them at the lodge. ( Id. ).

After a couple of visits, defendant Osborne started "criticism." ( Id. ). The "criticism" continued unchecked by defendants Herrin and Rohe. ( Id. ). Then, defendant Eddings "join[ed] in with his version of criticism (foul language)." ( Id. ). Eventually, plaintiff and his wife were told not to bring their daughter and her husband to the lodge. ( Id. ).

Plaintiff alleges that "[t]he abuse and discrimination continues up to this very day against people of color and members who do not fit this lodge's version of what an elk should be or look like." ( Id. ). The lodge's officers are charged with violating lodge by-laws and house rules. ( Id. ).

Plaintiff contends that there has been civil rights violations and racial and member discrimination. ( Id. at 1-2). There has been discrimination against his daughter and her husband, and against him, using violations of house rules and by-laws. ( Id. ). There has been "false witness against [him]" and "verb[a]l[] abuse against [his] character, such as (poor white trash, son of a bitch, Etc.) in the presen[ce] of other lodge members[, ]" and defendant Osborne "call[ed] [his] Daughter (a N' word loving bitch) with witnesses standing by." ( Id. ). For relief, plaintiff states that he "leave[s] the relief factor to the discretion of the court." ( Id.).

II. Analysis.

A. Authority to Dismiss for Lack of Jurisdiction.

In addressing any action on its docket, the Court's first consideration is to inquire into its jurisdiction, United States v. Denedo, 556 U.S. 904, 909, 129 S.Ct. 2213, 2219, 173 L.Ed.2d 1235 (2009), as the Constitution and Congress limits its jurisdiction only to hear certain actions. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). "Because a federal court is powerless to act beyond its... grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises." Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). This inquiry should be done at the earliest stage in the proceedings and sua sponte whenever subject matter jurisdiction may be lacking. University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). " [O]nce a court determines that there has been no [jurisdictional] grant that covers a particular case, the court's sole remaining act is to dismiss the case for lack of jurisdiction." Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).

B. Diversity of Citizenship Jurisdiction.

It is incumbent on a plaintiff in a federal action to set forth in his complaint the basis for federal subject matter jurisdiction. See Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.1994) (a pleader in federal court must affirmatively allege facts demonstrating the existence of jurisdiction). In that regard, Rule 8(a)(1) of the Federal Rules of Civil Procedure requires a plaintiff to include in his complaint "a short and plain statement of the grounds upon which the court's jurisdiction depends." Id. This statement must reflect that the court has subject matter jurisdiction based on diversity of citizenship or federal question. Id. ("Congress granted federal courts jurisdiction over diversity actions and cases raising a federal question.").

Because plaintiff did not identify any statute under which he is proceeding, the Court will examine the two sources on which its jurisdiction is based. Looking first at diversity of citizenship jurisdiction, the complaint must reflect that "the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between - citizens of different States...." 28 U.S.C. § 1332(a)(1). "Federal diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity' - the citizenship of every plaintiff must be diverse from the citizenship of every defendant." Legg v. Wyeth, 428 F.3d 1317, 1321 n.2 (11th Cir. 2005). That is, diversity jurisdiction exists only when "there is no plaintiff and no defendant who are citizens of the same State." Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 388, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998) (diversity of citizenship jurisdiction is destroyed by the mere presence of one non-diverse defendant).

In the present action, it appears that plaintiff is a resident of Alabama as well as defendants. ( Id. at 2). Thus, defendants and plaintiff are not diverse, and the Court lacks diversity of citizenship jurisdiction over this action. Furthermore, the complaint does not reflect that the controversy satisfied the jurisdictional amount in that an amount for damages was not specified. Dart Cherokee Basin Operating Co. v. Owens, __U.S. __, 135 S.Ct. 547, 553, ___ L.Ed.2d ___ (2014) ("When a ...


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