United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
SONJA
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
Plaintiff
Emogene Richardson Brown, who is proceeding pro se,
filed a complaint and a motion to proceed without prepayment
of fees. (Docs. 1, 2). At the Court's directive,
Plaintiff filed an amended complaint; thus, it is the
operative pleading. (See Docs. 3, 4). This matter is
now before the undersigned Magistrate Judge for review
pursuant to 28 U.S.C. § 636(b)(1)(A) and S.D. Ala. GenLR
72(b).[1] Because Plaintiff is proceeding in
forma pauperis, her amended complaint is subject to
screening under 28 U.S.C. § 1915(e)(2)(B).[2] See
Taliaferro v. United States, 677 Fed.Appx. 536, 537
(11th Cir. 2017) (“[U]nder § 1915(e), district
courts have the power to screen complaints filed by all IFP
litigants, prisoners and non-prisoners alike.”),
cert. denied, 138 S.Ct. 338 (2017). Having screened
Plaintiff's complaint, the Court finds that federal
jurisdiction is lacking. Accordingly, it is recommended that
this action be dismissed without prejudice, prior to service
of process, for lack of subject matter jurisdiction.
I.
BACKGROUND AND PROCEDURAL HISTORY
On
February 13, 2019, Plaintiff Emogene Richardson Brown
(“Plaintiff”) filed a complaint (Doc. 1), along
with a motion to proceed without prepayment of fees. (Doc.
2). In her initial complaint, Plaintiff listed the grounds
for jurisdiction as “Breach of promise” and
asserted that “Mendes & Mount Insurance
Company” of New York City refused to pay her claim for
damage to her roof as a result of “Hurricane Nat,
” which occurred on October 8, 2017. (Doc. 1 at 1-2).
According to Plaintiff, when the insurance adjuster came to
her home, she had buckets catching water from the roof, yet
he denied her claim. (Id. at 2). For relief,
Plaintiff requested that her roof be repaired.
(Id.).
Plaintiff
attached to her complaint various documents from small claims
case number SM-2018-000166.00 in the District Court of Mobile
County, Alabama, including a statement of claim (complaint),
an application and affidavit for entry of default judgment,
and a court order. (Id. at 5-8). In the state court
complaint, Plaintiff named as Defendants Raphael and
Associates and Mendes & Mount, and she claimed that the
defendants owed her $6, 000 because “they didn't
fix my roof, and my home has mildew and I've lose clothes
and furniture and, I smell the mildew in my home every
day.” (Id. at 5). In an application and
affidavit for entry of default judgment, Plaintiff again
claimed that she was owed $6, 000, plus $306 in court costs.
(Id. at 6). The state court, in an order dated
December 19, 2018, found as follows:
At the trial of this case, a preliminary issue was the
identity of the Defendant or Defendants sued by Plaintiff. To
clear up any confusion, any claims stated against Defendants
Raphael and Associates or Mendes & Mount are hereby
dismissed, with prejudice. The Defendant in this case for
trial is Certain Underwriters at Lloyds,
London.[3]
The case arises from an insurance claim made by Plaintiff for
damage to her property located at [Mobile, Alabama].
Plaintiff claims that her property was damaged during
Hurricane Nate, which struck the area in October, 2017. The
trial Defendant provided property insurance coverage for
Plaintiff's residence. The value of the policy of
insurance was $143, 000.00, but there was a general
deductible under the policy of $2, 500. This general
deductible was increased to $4, 290.00 in the event of damage
caused by wind or hail.
Plaintiff reported the damage following the hurricane. Within
a few days, Mr. Brett Pastor appeared at Plaintiff's
residence, to inspect the property and to prepare an estimate
of the cost of repairs. He did this work acting in an agency
capacity for Defendant Certain Underwriters at Lloyd's
London. Mr. Pastor determined that the total cost to repair
damage at Plaintiff's property, caused by wind driven
rain, was in the amount of $1, 005.16. This amount was well
below the policy deductible as set out above. Accordingly,
coverage was not denied. The claim simply fell below the
policy deductible.
At trial, there was no credible evidence from Plaintiff to
dispute the damage calculation prepared by Mr. Pastor.
Accordingly, Judgment is entered for Defendant, pursuant to
the terms of the contract of insurance between the parties.
Costs are taxed as paid.
(Id. at 7).
On June
7, 2019, the undersigned entered an order granting
Plaintiff's motion to proceed without fees and screening
Plaintiff's complaint pursuant to 28 U.S.C. §
1915(e)(2)(B). (Doc. 3). In the order, the undersigned
observed that Plaintiff's complaint failed to indicate
the states of citizenship of the Defendants, failed to allege
the amount in controversy, and did not assert any basis for
federal jurisdiction. (Id. at 4). Accordingly,
Plaintiff was ordered to file an amended complaint which set
forth the basis for this Court's jurisdiction no later
than June 28, 2019. (Id.). The undersigned also
noted in the order that, based on a preliminary review of
Plaintiff's complaint and the documents attached thereto,
it appeared that Plaintiff had litigated the same claims she
raises in the instant case against the same Defendants in
state court, that Plaintiff's claims against Mendes &
Mount were dismissed with prejudice, and that the state court
rendered judgment in favor of Certain Underwriters at Lloyds,
London. (Id. at 5). Plaintiff was placed on notice
that res judicata precludes claims which a plaintiff actually
raised or could have raised in a prior suit when (1) there is
a final judgment in a prior suit on the merits; (2) the
decision in the prior suit is rendered by a court of
competent jurisdiction; (3) the parties in both suits are
identical; and (4) both suits involve the same cause of
action, and she was ordered to show cause, by June 28, 2019,
why her claims against Defendants are not barred by res
judicata. (Id. at 4-5).
On June
24, 2019, apparently in response to the Court's order,
Plaintiff filed a handwritten document, which the Court is
treating as her amended complaint. (Doc. 4). On the first
page of the document, Plaintiff listed her name and address,
the name and address of Defendant Certain Underwriters Mendes
& Mount, and listed the grounds for jurisdiction as
“Denying my insurance claim[.]” (Id. at
1). On the third page of the document, Plaintiff stated:
“My roof need repairing which is still damaged, from
Hurricane Nate. This insurance company refuse to pay, me for
my damages. I am asking the court to grant me payment for my
damages.” (Id. at 3). Plaintiff did not
address the issue of res judicata. (See id.).
II.
STANDARDS OF REVIEW UNDER 28 U.S.C. §
1915(e)(2)(B)
Because
Plaintiff filed a motion to proceed in forma
pauperis (Doc. 2), the Court is reviewing her complaint
and amended complaint (Doc. 1, 4) under 28 U.S.C. §
1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be
dismissed as “frivolous where it lacks an arguable
basis either in law or fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim is frivolous
as a matter of law where, inter alia, the defendants
are immune from suit, or when the claim seeks to enforce a
right that clearly does not exist. Id. at 327. In
addition, a complaint may be dismissed under ...