Wilborn v. Tuten et al

Filing 35

MEMORANDUM OPINION VACATING the Court's previous 31 Memorandum Opinion and 32 Order, GRANTING 33 MOTION for Leave to File and Request to Supplement Response to Order to Show Cause. The Court concludes that the Plaintiff's objections are due to be, and hereby are OVERRULED. Further, once again, the Magistrate's 23 Order (doc. 23) is hereby ADOPTED as the opinion of this Court. Signed by Judge Virginia Emerson Hopkins on 7/12/2017. (JLC)

FILED
2017 Jul-12 PM 02:40
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).1 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

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These responses were still considered by the magistrate. See doc. 23 at 6-7.

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).
On June 26, 2017, the Court issued a Memorandum Opinion which noted the
procedural history above, and noted that the Plaintiff had filed nothing since the
Court’s last order. The court then stated:
The Court has, again, reviewed the entire file in this case, de
novo, and agrees with the magistrate that the Plaintiff has failed to
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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.
(Doc. 31 at 2). That same day, the Court issued a dismissal order. (Doc. 32).
On June 28, 2017, the Plaintiff filed a document entitled “Motion for Leave To
File Request To Supplement Response to Order to Show Cause out of Time, and
Request To Supplement Response to Order to Show Cause.” (Doc. 33) (hereinafter
“the Motion for Leave to Supplement”). That document bears a certificate of service
stating that it was deposited in the prison mailbox on June 21, 2017, which would
have been the day before any response to the Court’s previous Order was due. On
June 28, 2017, the Plaintiff also filed an “Objection” to the magistrate judge’s Order.
(Doc. 34). The certificate of service for that document also states that it was placed
into the prison mailbox on June 21, 2017. Although not filed into the record until
June 28, 2017, they are deemed to have been filed on June 21, 2017, the day “he
delivered the [documents] to prison authorities for forwarding to the District Court.”
Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 2382, 101 L. Ed. 2d 245 (1988);
see also, Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (“Under the
prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is
delivered to prison authorities for mailing.”). Because these filings are deemed

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timely filed, they should have been considered by this Court prior to the entry of the
Memorandum Opinion and the Order on June 26, 2017. Because they were not, the
Court’s Memorandum Opinion (doc. 31) and Order (doc. 32) issued on June 26, 2017,
are hereby VACATED.
In his Motion for Leave To Supplement, the Plaintiff “requests that the
documents filed on January 9, March 8, and April 19, 2017, (ECF Nos. 20-22), be
accepted for consideration as part of his timely-filed response to the Order to Show
Cause, (ECF No. 19).” (Doc. 33 at 2). That motion is GRANTED. Further, the
Court notes that the magistrate’s Order clearly did consider the documents in
question, despite their untimeliness. (Doc. 23 at 6-7). The Court also considered
them when it entered its two previous rulings on this issue (which have now been
vacated). It has considered them again in this opinion and continues to agree with,
and ADOPTS as the opinion of this Court, the magistrate’s conclusions as to those
documents.
Further, the Court has, again, reviewed de novo the entire file, including the
magistrate’s order and the objections and other documents submitted by the Plaintiff.
The Court concludes that the Plaintiff’s objections are due to be, and hereby are
OVERRULED. Further, once again, the magistrate’s Order (doc. 23) is due to be,
and hereby is, ADOPTED as the opinion of this Court. The Court EXPRESSLY
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finds that the Plaintiff has failed to establish that this Court has jurisdiction over this
matter. This case will be DISMISSED by a separate order.
DONE and ORDERED this 12th day of July, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

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