United States District Court, S.D. Alabama, Southern Division
BOBBY R. GILBERT, #143087, Plaintiff,
JESSICA MILLER, et al., Defendants.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.
Bobby R. Gilbert, an Alabama prison inmate proceeding pro
se and in forma pauperis, filed a complaint
based on diversity-of-citizenship jurisdiction under 28
U.S.C. § 1332(a). This action has been referred to the
undersigned for appropriate action pursuant to 28 U.S.C.
§ 636(b)(1)(B) and S.D. Ala. GenLR 72(b). After careful
review, it is recommended that this complaint be dismissed
without prejudice for lack of subject matter jurisdiction.
Nature of Proceedings and Complaint's
Plaintiff is proceeding in forma pauperis pursuant
to 28 U.S.C § 1915(a)(1), the Court is required to
screen his complaint prior to service of process according to
28 U.S.C. § 1915(e)(2)(B). During the course of
screening, a complaint is subject to being dismissed if it is
"frivolous or malicious; fails to state a claim upon
which relief may be granted; or seeks monetary relief from a
defendant who is immune from such relief." 28 U.S.C.
§ 1915(e)(2)(B)(i-iii). Not only may a complaint be
dismissed pursuant to this statute at this point in the
proceedings, but any complaint brought by any plaintiff is
subject to being dismissed if it fails to invoke this
Court's subject matter jurisdiction. Barnett v.
Bailey, 956 F.2d 1036, 1039 (11th Cir. 1992) ("a
court sua sponte can raise a jurisdictional defect
at any time"); see Taliaferro v. United States,
677 Fed.Appx. 536, 537-39 (11th Cir.) (unpublished)
(affirming the district court's sua sponte
dismissal of a pro se, non-prisoner's complaint
against the IRS pursuant to 28 U.S.C. § 1915(e) and for
lack of subject matter jurisdictional cert, denied, 138
S.Ct. 338 (2017).
light of the Court's foregoing responsibilities, the
Court will examine the complaint's allegations which are
described as a fraudulent "pen-pal scam to exploit
inmates." (Doc. 1 -1 at 1). Plaintiff Bobby Ray
Gilbert sued Jessica M. Miller of Oxford, Indiana,
Alina Pride of Brooklyn, New York, and
DeathMerchant.net, their online business. (Doc. 1 at
1). According to Plaintiff, Defendant
DeathMerchant.com is "a commercial enterprise
dealing in the sale of prisoner related items, called true
crime collectables." (Id. at 2). Defendants
Miller and Pride are the administrators of the internet-based
business, with Defendant Miller being the registered owner
and primary administrator and being ultimately responsible
for the content, and with Defendant Pride being the secondary
administrator and being responsible for all items, libelous
entries, and stolen goods represented as being hers.
(Id. at 2-3).
maintains that the inventory listed for sale on Defendant
DeathMerchant.com was acquired through various
means, such as pen-pal writing, false pretense, theft by
deception, or verbal contracts, and was placed there by
Defendants without the rightful owners' knowledge or
approval. (Id. at 3). The inventory of true crime
collectables consists of personal correspondence written by
prisoners, "artwork, photos, prison issued IDs, hand
tracings, legal documents, craft items, clothing, hair, and
various other items[.]" (Id. at 4). The inmates
who are targeted by Defendant Miller have received
"sufficient" media coverage for their crimes so she
can profit from the inmate's name recognition with the
public. (Id). Defendant Miller writes to inmates and
their families and includes a photo of another woman who is
identified as being her or Defendant Pride in order to ensure
a response. (Id. at 5). The response is then
advertised for sale on Defendants' social media pages,
such as Facebook and Tumblr, without the author's
permission or knowledge. (Id). Defendants also
attempt to establish romantic relationships with, and solicit
telephone calls from, targeted inmates for the purpose of
recording, without the inmate's knowledge or
authorization, the conversations so the calls can be used to
promote their website or be placed on the internet.
(Id). And Defendants contact the targeted
inmates' family members under the premise of being
romantically involved with the inmate in order to
"scam" the family into sending photographs
depicting the inmate's childhood and family, articles of
the inmate's clothing, or other items, which can then be
placed on the website and be represented as belonging to the
inmate. (Id. at 6). When Defendant
DeathMerchant.net lists these items for sale, a
short biography of the inmate accompanies the listing and
describes "often grossly exaggerated or outright
fabricated accounts] of crimes committed by that
inmate." (Id). This causes emotional distress
for the victims' loved ones, punishment of the inmates by
prison officials, and publication of articles by the media.
maintains that Defendant Miller in a telephone call to his
elderly mother manipulated her into disclosing her social
security number, which was then used to establish various
online accounts in his mother's name. (Id).
inmate requests the return of property or removal of his name
from the website, Defendants either ignore the request or
insult and threaten the inmate. (Id. at 7). Once,
when an inmate threatened legal action if his name was not
removed, Defendant Miller paid inmates to assault him and
posted a video of the assault on her YouTube channel as a
warning. (Id. at 6). And, when Plaintiff sought to
resolve his issues with Defendants, he received insults and
slanderous remarks from Defendants. (Id. at 7).
Then, when Plaintiff obtained legal representation on these
issues, Defendants harassed his attorney and her family and
clients causing her to terminate her representation.
claims that for over nine years, Defendants Miller and Pride
have "toyed with the emotions of inmates across the
United States with absolute impunity[.]" (Id.
at 8). For Defendants' actions, Plaintiff seeks (1)
compensation in the amount of $1, 275.00 for all costs
associated with bringing this action ("filing fees,
court cost, time and expense"), (2) an order that
Defendants be required to pay $75, 000 in punitive damages to
a fund for victims of violent crime which is to be
administered by a court-appointed victims' advocate, and
(3) an order requiring Defendants to return to the exploited
inmates all personal letters, all legal documents concerning
the inmates' convictions, "all photos, artwork, hand
tracings, prison issued IDs, clothing, and craft items signed
by an inmate." (Id. at 8-9).
Citizenship of Parties.
reviewing Plaintiff's allegations, the Court finds that
his complaint is deficient in several respects, some of which
are discussed below. "Federal courts exercise limited
subject matter jurisdiction, empowered to hear only those
cases within the judicial power of the United States as
defined by Article III of the Constitution or otherwise
authorized by Congress." Taylor v. Appleton, 30
F.3d 1365, 1367 (11th Cir. 1994). Because Congress authorized
the federal courts to have jurisdiction over actions based on
diversity of citizenship, 28 U.S.C. § 1332, the
complaint must affirmatively allege facts establishing the
existence of jurisdiction. Id. "A federal court
is powerless to act without jurisdiction," and should
therefore inquire sua sponte into its jurisdiction
at the earliest stage of the proceedings. Univ. of S.
Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999). If the court finds that subject matter jurisdiction is
lacking, it is powerless to continue and must dismiss the
action for that reason. Id.
jurisdiction requires that the plaintiff allege the
citizenship of each natural person who is a party, showing
that the plaintiff and defendants are citizens of different
states, and that the amount in controversy exceeds $75,
28 U.S.C. § 1332(a)(1); Taylor, 30 F.3d at
1367. "Citizenship is equivalent to 'domicile'
for purposes of diversity jurisdiction, ... [a]nd domicile
requires both residence in a state and an intention to remain
there indefinitely. ..." Travaglio v. Am. Express
Co., 735 F.3d 1266, 1269 (11th Cir. 2013) (citations
omitted). Here, Plaintiff does not indicate the citizenship
of any party. He merely states that "Defendants reside
in states other than plaintiff[']s" and provides
Defendants Miller's and Pride's addresses, Indiana
and New York, respectively. (Doc. 1 at 1-2). And, even though
Plaintiff is incarcerated in Alabama, a prisoner's
citizenship generally resides with the state where he was
domiciled prior to incarceration. Mitchell v. Brown &
Williamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir.
2002). Thus, the complaint's information does not provide
Plaintiff's or Defendants' citizenship, nor is
Defendant DeathMerchant.com's business structure clearly
described in order to determine its requirements for
establishing its citizenship.