Wilborn v. Tuten et al

Filing 31

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/26/2017. (JLC)

FILED
2017 Jun-26 PM 02:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DON MITCHELL WILBORN,
Pro Se Plaintiff,
v.
ROBERT B. TUTEN, et al,
Defendants.

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Civil Action No.:
4:16-CV-106-VEH

MEMORANDUM OPINION
The record reflects that, on August 5, 2016, the magistrate notified the Plaintiff
that the face of his Complaint was insufficient to meet his burden to establish federal
question or diversity jurisdiction. (Doc. 16). The magistrate gave the Plaintiff thirty
(30) days to show cause why his Complaint should not be dismissed for lack of
subject matter jurisdiction. (Id. at 3). The plaintiff filed a First Amended Complaint
on August 17, 2016. (Doc. 17). That document is now the operative complaint.
Additionally, on September 2, 2016, the Plaintiff filed a response to the Order To
Show Cause. (Doc. 19). Thereafter, he filed three untimely responses. (Docs. 20, 21,
and 22). On May 9, 2017, in an extensive order, the magistrate demonstrated that this
Court lacks subject matter jurisdiction over this action and determined that it was due
to be dismissed without prejudice. (Doc. 23). Thereafter, the case was reassigned to
the undersigned.

On May 22, 2017, this Court agreed with the magistrate that this Court did not
have subject matter jurisdiction over this case and dismissed this case without
prejudice. (Docs. 27, 28). Thereafter, the Plaintiff filed a “Motion To Vacate
Memorandum Opinion and Final Order” (doc. 29) in which he stated that “[a] copy
of the magistrate judge’s [Report and Recommendation (“R & R”)] has NOT ever
been provided to Mr. Wilborn. As such, Mr. Wilborn has NOT ever been provided
an opportunity to file written objections to the magistrate judge’s R & R[.]” (Doc. 29
at 1). The Court then entered the following order:
[B]ecause the Plaintiff states that he never saw the magistrate’s Order,
the motion to vacate is hereby GRANTED. The Court’s memorandum
opinion (doc. 27) and Order dismissing this case (doc. 28) are hereby
VACATED.
The clerk of court is DIRECTED to reopen this case. The
Plaintiff may file any response to the magistrate’s Order (doc. 23)
no later than June 22, 2017.
(Doc. 30 at 2). To date, the Plaintiff has filed nothing.
The Court has, again, reviewed the entire file in this case, de novo, and agrees
with the magistrate that the Plaintiff has failed to establish that this Court has subject
jurisdiction over this matter. The magistrate’s Order of May 9, 2017, is ADOPTED
as the opinion of this Court. By separate order, this matter will be DISMISSED
without prejudice.

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DONE this 26th day of June, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

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