Burns v. Brazzolotto

Filing 24

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/18/2018. (JLC)

FILED
2018 Apr-18 PM 01:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TIMOTHY BURNS,
Pro Se Plaintiff,
v.
SARAH BRAZZOLOTTO,
Defendant.

)
)
)
)
)
)
)
)
)

Civil Action No.:
4:17-CV-1728-VEH

MEMORANDUM OPINION
This matter is before the court on the Motion To Dismiss filed by Defendant
Sarah Brazzolotto (the “Motion”). (Doc. 16). The Motion is brought pursuant to Rules
12(b)(1), (5), and (6) of the Federal Rules of Civil Procedure.1 The Plaintiff, who is
appearing pro se, was advised by this Court of the nature of the motion and his need
to respond to it no later than April 4, 2018. (Doc. 17). In response, on March 20, 2018,

1

FED. R. CIV. P. 12(b) states, in pertinent part:
(b) How to Present Defenses. Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading if one is required. But a party
may assert the following defenses by motion:
(1) lack of subject matter jurisdiction;
***
(5) insufficient service of process; [and]
(6) failure to state a claim upon which relief can be granted....

the Plaintiff filed three separate documents opposing the motion. (Docs. 19, 20, 21).
That same day, he also filed a “Motion for Judgment.” (Doc. 18). The Court has
considered all of these responses in its ruling.2
For the reasons stated herein, the Plaintiff’s Motion for Judgment will be
DENIED, and the Defendant’s Motion To Dismiss will be GRANTED.
I.

STANDARD
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal

of an action where the court finds that it does not have subject matter jurisdiction. Rule
12(b)(6) provides for dismissal for failure of a party to state a claim for which relief can
be granted. Rule 12(b)(5) provides for dismissal where service of process is
insufficient.
Where “a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, the court should consider the Rule 12(b)(1) jurisdiction attack before
addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). A
motion to dismiss for lack of subject matter jurisdiction should be granted “only if it
appears certain that the plaintiff cannot prove any set of facts in support of his claim
2

All of the Plaintiff’s filings were duplicates of documents he filed in his previously dismissed
case. See, Burns v. State of Alabama, 4:17-cv-01784-LSC-JEO.
2

that would entitle plaintiff to relief.” Ramming, 281 F.3d at 161. Lack of subject matter
jurisdiction may be found through an examination of: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed
facts. See id. Because the burden of proof on a motion to dismiss for lack of subject
matter jurisdiction is on the party asserting jurisdiction, plaintiff “constantly bears the
burden of proof that jurisdiction does in fact exist.” See Ramming, 281 F.3d at 161
(citing McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995), and
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
If the court determines that subject matter jurisdiction exists, it must then address
the Rule 12 (b)(6) motion. Ramming, 281 F.3d at 161 (citing Hitt, 561 F.2d at 608).
Generally, the Federal Rules of Civil Procedure require only that the complaint provide
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a). However, to survive a motion to dismiss brought under Rule
12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombly”).
A claim has facial plausibility “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
3

U.S. at 556) (“Iqbal”). That is, the complaint must include enough facts “to raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation and footnote
omitted). Pleadings that contain nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice
that are based merely upon “labels or conclusions” or “naked assertion[s]” without
supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, “it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to dismiss, a court must “take the
factual allegations in the complaint as true and construe them in the light most favorable
to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing
Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
In this case, the Rule 12(b)(5) motion is reviewed in light of the requirements of
Rule 12(m). “A plaintiff is responsible for serving the defendant with both a summons
and the complaint within the time permitted under Rule 4(m).” Anderson v. Osh Kosh
B'Gosh, 255 F. App'x 345, 347 (11th Cir. 2006) (citing FED.R.CIV.P. 4(c)(1)).
If a defendant is not served within 90 days after the complaint is filed, the
court--on motion or on its own after notice to the plaintiff--must dismiss
the action without prejudice against that defendant or order that service
be made within a specified time. But if the plaintiff shows good cause for
the failure, the court must extend the time for service for an appropriate
4

period.
FED. R. CIV. P. 4(m). “‘Good cause’ exists ‘only when some outside factor [,] such as
reliance on faulty advice, rather than inadvertence or negligence, prevented service.’”
Anderson, 255 F. App'x at 347 (quoting Prisco v. Frank, 929 F.2d 603, 604 (11th
Cir.1991) (discussing “good cause” under former Rule 4(j)), superseded in part by rule
as stated in Horenkamp v. Van Winkle And Co., 402 F.3d 1129, 1132 (11th Cir.
2005)). “[E]ven in the absence of ‘good cause,’ district courts have the discretion to
extend the time for service of process.” Anderson, 255 F. App'x at 347 (citing
Horenkamp, 402 F.3d at 1132-33).
II.

ALLEGATIONS IN THE COMPLAINT
This matter arises out of custody proceedings pertaining to A.B.3, the Plaintiff’s

minor child. On August 17, 2017, Turquoise Garnett, A.B.’s sister, filed a Dependency
Petition in the Juvenile Court of St. Clair County. As a result of that petition, on
October 4, 2017, via an Emergency Temporary Order entered by Judge Robert Minor,
the Juvenile Court awarded “care, custody[,] and control” of A.B. to Garnett. (Doc. 1-1
at 4). That same date, the Circuit Court of St. Clair County denied a petition by Sharon

3

The Northern District of Alabama’s Civil Administrative Procedures Manual provides that “[i]f
the involvement of a minor child must be mentioned, only the initials of that child should be used.”
CM/ECF
Administrative
Procedures
Civil
02-01-2018
(http://www.alnd.uscourts.gov/sites/alnd/files/AL-N%20Civil%20Administrative%20Procedures
%20Manual.Revision.02-2018.pdf) at 13.
5

Evans, A.B.’s mother, to modify custody. (Doc. 1-1 at 6). The nature of the
modification sought is unclear, but the Court assumes that the Circuit Court had
previously granted Burns custody of A.B. and, in light of the Dependency Petition filed
by Garnett, Evans sought to have custody vested with Evans. In any case, as part of the
proceedings in the Circuit Court, Sarah Brazzolotto, the Defendant in this case, was
appointed the Guardian ad Litem for A.B. (Doc. 1-1 at 6). The Plaintiff in this case did
not appear at the hearings held in either case, and claims that he was not given notice
of either of them.
The Plaintiff alleges that the entry of these orders was a denial of his rights to
due process and equal protection under the Fourteenth Amendment to the United States
Constitution. (Doc. 1-1 at 1). He states that he complained to Judge Minor4 about the
behavior of someone named “Tammy,”5 but states that Judge Minor “never took any
action . . . but acted in a different way, in favor of the law firm.” (Doc. 1-1 at 2). He
states that he has been “denied due process more than once,” and that “[t]he courts
have been informed yet no action has been taken.” (Doc. 1-1 at 2). He states that
Brazzolotto “filed allegations on or about 8/17/2017 misleading [the] court and clerk,”

4

The Plaintiff actually states that he complained to Judge “Minon.” However, the only Judge
whose name appears anywhere on the orders attached to the Plaintiff’s Complaint is Judge Minor.
5

In one of his responses to the Motion To Dismiss, the Plaintiff identifies a “Tammie Cook,” who
he states entered his home and “conduct[ed] an illegal search.” (Doc. 20 at 1).
6

and “the clerk conspired with [Brazzolotto] to remove [A.B.] from the home of the
[P]laintiff.” (Doc. 1-1 at 2).
The Plaintiff asks this Court “to order the court who ordered the removal of
[A.B.] to return [her to] the [P]laintiff and to remove the attorney’s [from] the case.”
(Doc. 1-1 at 1). He also seeks money damages. (Doc. 1-1 at 3).
III.

ANALYSIS
This Court does not have jurisdiction over this case. Unlike State courts, federal

courts are courts of limited jurisdiction, meaning that the grounds for the Court’s
jurisdiction must be present at the time the complaint is filed and must be obvious on
the face of the complaint. Fed. R. Civ. P. 8(a); 28 U.S.C. § 1330, et seq. The law is
clear that Plaintiff, the person seeking to invoke jurisdiction in this case, has the burden
to demonstrate that the Court has subject matter jurisdiction. McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936). Lack of subject matter
jurisdiction cannot be waived or expanded by judicial interpretation, and a jurisdictional
defect can be raised at any time by either the parties or the Court. Sosna v. Iowa, 419
U.S. 393, 398 (1975); American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18
(1951). The “well-pleaded complaint rule” governs whether this Court has federal
question jurisdiction. Caterpillar v. Williams, 482 U.S. 386 (1987); Gully v. First
National Bank, 299 U.S. 109 (1936); Gulf States Paper Corporation v. Ingram, 811
7

F.2d 1464 (11th Cir. 1987).
As noted previous, the Plaintiff claims that he was denied his right to due process
and equal protection guaranteed under the Fourteenth Amendment to the United States
Constitution. (Doc. 1-1 at 1).6 This appears to be a claim brought pursuant to 42 U.S.C.
§ 1983, which allows suits against “state actors” for violations of civil rights.7 When
the Plaintiff’s claims are based in federal law, jurisdiction is appropriate pursuant to 28
U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.
Under § 1331, federal courts have jurisdiction to hear “only those cases in which
a well-pleaded complaint establishes either that federal law creates the cause of action

6

He also claims that he is the victim of “discrimination.” The Plaintiff does not explain how the
Defendant discriminated against him. Nor does he cite any law or rule which he alleges was violated
by such discrimination. There is no plausible discrimination claim here. Furthermore, although the
Plaintiff mentions the Fifth Amendment in his Complaint, to the extent that he has a claim against a
state actor, the rights he claims were violated are guaranteed by the Fourteenth Amendment.
7

The statute provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . ..

42 U.S.C.A. § 1983.
8

or that the plaintiff's right to relief necessarily depends on resolution of a substantial
question of federal law.” Franchise Tax Bd. v. Construction Laborers Vacation Trust,
463 U.S. 1, 27-28 (1983). The Eleventh Circuit Court of Appeals has stated:
To state a claim for relief under § 1983, a plaintiff must allege that
an act or omission committed by a person acting under color of state law
deprived him of a right, privilege, or immunity secured by the Constitution
or laws of the United States. See Hale v. Tallapoosa Cty., 50 F.3d 1579,
1582 (11th Cir.1995). A person acts under color of law when he or she
is “acting with power possessed by virtue of the defendant's employment
with the state.” See Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522
(11th Cir.1995). Although state employment is “generally sufficient” to
make a person a state actor, “[n]ot all actions by state employees are acts
under color of law.” Id. at 1523. A private party may be held liable as a
state actor in only three circumstances:
(1) the State has coerced or at least significantly encouraged
the action alleged to violate the Constitution (“State
compulsion test”); (2) the private parties performed a public
function that was traditionally the exclusive prerogative of
the State (“public function test”); or (3) the State had so far
insinuated itself into a position of interdependence with the
private parties that it was a joint participant in the enterprise
(“nexus/joint action test”).
See Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th
Cir.2001) (internal quotation marks omitted and alteration adopted).
Jimenez v. Wizel, 644 F. App'x 868, 871–72 (11th Cir.), cert. denied, 137 S. Ct. 203,
196 L. Ed. 2d 131 (2016). The Plaintiff has failed to plead any allegations which satisfy
any of these tests so that Brazzolotto is a state actor. See also, Higdon v. Smith, 565
F. App'x 791, 793 (11th Cir. 2014) (although GAL was appointed by the state in
9

custody proceedings and the state regulated her conduct, the regulatory role alone is not
sufficient to render GAL a state actor for the purposes of § 1983). To the extent that
the Plaintiff’s claims are brought pursuant to Section 1983, they fail. Accordingly, there
is no federal question presented, and this Court does not have jurisdiction over this
matter pursuant to 28 U.S.C. § 1331. See also, Jimenez, 644 F. App'x at 870 (“The
child custody dispute is not a matter arising under the original jurisdiction of the federal
courts because it is not an action ‘arising under the Constitution, laws, or treaties of the
United States.’”) (quoting 28 U.S.C. § 1331).8
This Court also lacks diversity jurisdiction. Pursuant to 28 U.S.C. § 1332, “the
district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and
is between . . . citizens of different States.” 28 U.S.C.A. § 1332(a)(1). As noted
previously, the burden is on the Plaintiff to establish jurisdiction–i.e. that there is
diversity of citizenship. Because he has failed to allege the citizenship of either himself
or the Defendant, there is no jurisdiction under 28 U.S.C. § 1332.9

8

The Court's subject matter jurisdiction is also called into question by the Rooker-Feldman
abstention doctrine. Under this doctrine, a federal court does not have the power to review the final
judgment of a state court. See Biddulph v. Mortham, 89 F.3d 1491, 1495 n.1 (11th Cir. 1996).
9

Regardless, the facts of this case make it clear that both parties are citizens of Alabama.
10

IV.

CONCLUSION
Because this Court does not have jurisdiction over this matter, a Final Order will

be entered dismissing this case without prejudice.
DONE and ORDERED this 18th day of April, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

11