Nails v. Preston et al

Filing 3

MEMORANDUM OPINION AND ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by Angela Denise Nails; Accordingly, it is hereby Ordered that this case is dismissed without prejudice for want of subject matter jurisdiction. Signed by Judge Mark E. Fuller on 9/11/06. (vma, ) Additional attachment(s) added on 9/11/2006 (vma, ).

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Nails v. Preston et al Doc. 3 Case 1:06-cv-00798-MEF-SRW Document 3 Filed 09/11/2006 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION A N G E L A DENISE NAILS, P L A IN T IF F , v. E U G E N E PRESTON, et al., DEFEN DANTS. ) ) ) ) ) ) ) ) ) C A S E NO.: 1:06-cv-798-MEF (W O -N o t Recommended for Publication) M E M O R A N D U M OPINION AND ORDER P la in tif f has filed a motion seeking to proceed in forma pauperis in this action (Doc. # 2). Upon consideration of the motion, it is O R D E R E D that the motion to proceed in forma pauperis is GRANTED. Upon re v ie w of the complaint filed in this case, the court concludes that dismissal of the complaint p rio r to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).1 O n September 6, 2006, Angela Denise Nails ("Nails") filed her second lawsuit in this C o u rt against Eugene and Pauline Preston ("the Prestons") for injuries Nails allegedly s u f f ere d when Eugene Preston struck Nails with a vehicle owned by Pauline Preston.2 The statute provides, in pertinent part: "[T]he court shall dismiss the case at any tim e if the court determines that . . . the action or appeal­ (i) is frivolous or malicious, (ii) f a ils to state a claim on which relief may be granted; or (iii) seeks monetary relief against a d ef en d an t who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Nails filed her first lawsuit against the Prestons on March 17, 2006. See Nails v. P r e s to n et al., 1:06cv246 (M.D. Ala. 2006). Like the instant lawsuit, Nails' first suit also a ro s e out of alleged injuries to Nails when she was struck by a vehicle driven by Eugene P r e sto n and owned by Pauline Preston. On April 7, 2006, the Court dismissed Nails' first law su it without prejudice because it lacked subject matter jurisdiction over the action. Nails m a d e two unsuccessful attempts to have this Court reconsider this ruling and then simply 2 1 Case 1:06-cv-00798-MEF-SRW Document 3 Filed 09/11/2006 Page 2 of 3 A federal court is a court of limited of jurisdiction. Kokkonen v. Guardian Life Ins., 5 1 1 U.S. 375, 377 (1994). That is, a federal court is authorized to entertain only certain a c t i o n s which the Constitution or Congress has authorized it to hear. Id. "It is to be p re su m e d that a cause lies outside this limited jurisdiction, ..., and the burden of establishing th e contrary rests upon the party asserting jurisdiction,...." Id. (citations omitted). Therefore, a plaintiff is required by Rule 8(a)(1) of the Federal Rules of Civil Procedure to allege in his c o m p la in t "a short and plain statement of the grounds upon which the court's jurisdiction d e p e n d s." Indeed, a federal court's jurisdiction must be established by a plaintiff in the c o m p la in t by stating the basis of the court's jurisdiction and by pleading facts that d e m o n s tra te the existence of jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11 th Cir. 1 9 9 4 ); Kirkland Masonry, Inc. v. Comm'r, 614 F.2d 532, 533 (5 th Cir. 1980) (same).3 P r o se litigants are not excused from compliance with the Federal Rules of Civil P r o c e d u re . Although the court is required to liberally construe a pro se litigant's pleadings, th e court does not have "license to serve as de facto counsel for a party ..., or to re-write an o th e rw is e deficient pleading in order to sustain an action...." GJR Investments, Inc. v. County o f Escambia, Fla., 132 F.3d 1359, 1369 (11 th Cir. 1998). Consequently, a court may not e x c u se a pro se litigant from the requirement of stating the basis for the court's jurisdiction in her pleadings. "[O]nce a court determines that there has been no [Congressional] grant filed a new lawsuit with substantially similar allegations. In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11 th Cir. Nov. 3, 1981) (e n banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions h a n d e d down prior to the close of business on September 30, 1981. 2 3 Case 1:06-cv-00798-MEF-SRW Document 3 Filed 09/11/2006 Page 3 of 3 th a t covers a particular case, the court's sole remaining act is to dismiss the case for lack of ju ris d ic tio n ." Morrison v. Allstate Indemnity Co ., 228 F.3d 1255, 1261 (11 th Cir. 2000). A c c o r d , Barnett v. Bailey, 956 F.2d 1036, 1039-41 (11 th Cir.1992) (holding that a court is re q u ire d to examine its jurisdiction over an action at any time and dismiss an action sua sp o n te for lack of subject matter jurisdiction if jurisdiction is not found). Indeed, Federal R u le of Civil Procedure 12(h)(3) specifically provides that "[w]henever it appears by s u g g e s tio n of the parties or otherwise that the court lack jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3) (emphasis added). A f te r a careful review of the Complaint (Doc. # 1), the Court finds that Nails has fa iled to articulate any conceivable basis for federal subject matter jurisdiction. Moreover, g iv e n that this action is a personal injury action between private parties who all are citizens o f Alabama,4 the Court cannot imagine any possible, but as yet unarticulated basis for federal s u b je c t matter jurisdiction over this action. Neither the United States Constitution, nor any a c t of Congress authorizes this Court to entertain this cause of action. Accordingly, it is h e r eb y ORDERED that this case is DISMISSED WITHOUT PREJUDICE for want of s u b je c t matter jurisdiction. DONE this the 11 th day of September, 2006. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 4 Nails has consistently alleged that she and the Prestons are citizens of Alabama. 3

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