Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gilbert v. Miller

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

November 8, 2018

BOBBY R. GILBERT, #143087, Plaintiff,
v.
JESSICA MILLER, et al., Defendants.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. Nature of Proceedings and Complaint's Allegations.

         Because 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raise a jurisdictional defect at any time"); see Taliaferro v. United States, 677 Fed.Appx. 536, 537-39 (11th Cir.) (unpublished) (affirming the district court's sua sponte dismissal of a pro se, non-prisoner's complaint against the IRS pursuant to 28 U.S.C. § 1915(e) and for lack of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[1] cert, denied, 138 S.Ct. 338 (2017).

         In 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[2] 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).

         Plaintiff 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. (Id).

         Plaintiff 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).

         When an 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. (Id).

         Plaintiff 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).

         II. Analysis.

         A. Citizenship of Parties.

         After 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.

         Diversity-of-citizenship 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, 000.[3] 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.

         B. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.