Selensky v. State Of Alabama

Filing 5

Order granting 2 and 4 MOTIONS for Leave to Proceed in forma pauperis filed by Linda Cone Selensky. Plaintiff is ORDERED to file, by 5/31/2011, an amended complaint as further set out. Disposition Deadline set to 5/31/2011. Signed by Magistrate Judge Sonja F. Bivins on 5/11/2011. copy of order and Pro Se Litigant Guide mailed to plf as directed. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LINDA SELENSKY,

:

Plaintiff,

:

vs.

:CIVIL ACTION NO. 11-00195-KD-B

STATE OF ALABAMA,

:

Defendant.

:
ORDER

This action is before the Court on Plaintiff’s Complaints
and Motions to Proceed Without Prepayment of Fees (Docs. 1, 2,
3, 4).

Turning first to Plaintiff’s Motions to Proceed Without

Prepayment of Fees (Docs. 2, 4), the undersigned finds that the
motions are due to be granted.
Because

Plaintiff

is

proceeding

in

forma

pauperis,

the

Court is reviewing her Complaints1 (Docs. 1, 3) under 28 U.S.C. '
1915(e)(2)(B).2

Under

'

1915(e)(2)(B)(i),

a

claim

may

be

dismissed as “frivolous where it lacks an arguable basis in law

1

As best
identical.
2

the

Court

can

determine,

the

Complaints

are

The frivolity and the failure-to-state-a-claim analysis
contained in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989), was unaltered when Congress enacted 28
U.S.C. ' 1915(b)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346,
1349 (11th Cir.), cert. denied, 534 U.S. 1044 (2001). However,
dismissal is now mandatory under ' 1915(e)(2)(B). Bilal, 251
F.3d at 1348-49.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct.

or fact.”

1827, 1831-32, 104 L.Ed.2d 338 (1989).

A claim is frivolous as

a matter of law where, inter alia, the defendants are immune
from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to
enforce a right that clearly does not exist.

Id.

Moreover, a complaint may be dismissed under 28 U.S.C. '
1915(e)(2)(B)(ii) for failure to state a claim upon which relief
may be granted.
Cir. 1997).

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th

To avoid dismissal for failure to state a claim

upon which relief can be granted, the allegations must show
plausibility.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).

“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,

L.Ed.2d

556

(2009).

U.S.

___,

129

S.Ct.

1937,

1948,

173

868

That is, “[f]actual allegations must be enough to raise

a right to relief above the speculative level” and must be a
“‘plain statement’ possess[ing] enough heft to ‘sho[w] that the
pleader is entitled to relief.’”

Twombly, 550 U.S. at 555, 557,

127 S.Ct. at 1965, 1966 (quotations marks and second brackets in
original). “Threadbare recitals of the elements of a cause of
action,
suffice.”

supported

by

mere

conclusory

statements,

Iqbal, 556 U.S. at ___, 129 S.Ct. at 1949.
2

do

not

When considering a pro se litigant=s allegations, a court
gives them a liberal construction holding them to a more lenient
standard than those of an attorney.
519,

520,

92

S.Ct.

594,

Haines v. Kerner, 404 U.S.

595-596,

30

L.Ed.2d

652

(1972).

However, a court does not have “license . . . to rewrite an
otherwise deficient pleading [by a pro se litigant] in order to
sustain an action.”

GJR Investments v. County of Escambia,

Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other
grounds by Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 173
L.Ed.2d
(11th

868 (2009); see Randall v. Scott, 610 F.3d 701, 709
Cir.

2010)

(observing

Iqbal’s

overruling

Investments’ heightened pleading standard).

of

GJR

Furthermore, a pro

se litigant “is subject to the relevant law and rules of court
including

the

Federal

Rules

of

Civil

Procedure.”

Moon

v.

Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S.
863 (1989).
1997).
A review of Plaintiff’s Complaints in this case reveals
that they are fatally flawed.

The allegations in the Complaints

are rambling and devoid of a coherent thought. (Docs. 1, 3).
From

the

allegations,

the

Court

is

unable

to

discern

how

Plaintiff believes she has been injured, who allegedly injured
her,

and

drafted,

what

claims

Plaintiff’s

she

wishes

Complaint

to

does
3

pursue.
not

contain

As
a

currently
short

and

plain statement of her claims as required by Rule 8(a) of the
Federal Rules of Civil Procedure.3

Rule 8(a) requires the

complaint contain “short and plain statements of the claim that
will give the defendant fair notice of what the plaintiff’s
claim’ is and the grounds upon which it rests.”

Leatherman v.

Tarrant County Narcotics Intelligence and Coordination Unit, 507
U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed. 2d 517 (1993).

A

complaint “should be short because ‘[u]necessary prolixity in a
pleading places an unjustified burden on the court and the party
who must respond to it because they are forced to select the
relevant materials from a mass of verbiage.’” Id. (quoting 5C
Wright & A. Miller, Federal Practice and Procedure § 1281, at

3

Rule 8(a) provides:
(a) Claim for Relief. A pleading that
states a claim for relief must contain:
(1) a short and plain statement of
the grounds for the court’s
jurisdiction, unless the court
already has jurisdiction, and the
claim needs no new jurisdictional
support;
(2) a short and plain statement of
the claim showing that the pleader
is entitled to relief; and
(3) a demand for the relief
sought, which may include relief
in the alternative or different
types of relief.

4

365

(1969)).

When

a

complaint

is

not

a

short

and

plain

statement, the Court is required to intervene at the earliest
opportunity and order the plaintiff to re-plead his complaint by
Pelletier v. Zweifel, 921

filing a complying amended complaint.

F. 2d 1465, 1522 n. 103 (llth Cir.), cert. denied, 502 U.S. 855,
112 S. Ct 167, 116 L. Ed. 2d 131 (1991).

Otherwise, the Court

and the defendant would have to decipher a plaintiff’s pleadings
“with the expenditure of much time and effort.” Id. The failure
to plead an amended complaint that complies with Rule 8(a), that
is, an amended complaint that provides fair notice to the Court
and each defendant of each claim against each defendant, after
being

required

to

re-plead

a

complaint,

will

result

in

the

dismissal of the action under Fed.R.Civ.P. 41(b) for the failure
to comply with the Court’s order.

Pelletier, 921 F. 2d at 1522

n.103.
Accordingly, Plaintiff is ORDERED to file, on or before May
31,

2011,

an

amended

complaint.

In

her

amended

complaint,

Plaintiff is ORDERED to provide facts regarding her claim.

In

other words, Plaintiff must state what the Defendant did to
violate Plaintiff’s rights. Plaintiff’s amended complaint will
supersede

her

original

Complaints

(Doc.

1,

3).

Fritz

v.

Standard Life Ins. Co., 676 F.2d 1356, 1358 (11th Cir. 1982).
Therefore, Plaintiff shall not reference her prior Complaints.

5

Additionally, when Plaintiff is drafting her new complaint,
she must state why this Court has jurisdiction over her action.
In order to preside over an action in federal court, the federal
court must have jurisdiction over the action3. Fitzgerald v.
Seaboard
1985).

Syst.

R.R.,

Inc.,

760

F.

2d

1249,

1251

(llth

Cir.

“[B]ecause a federal court is powerless to act beyond

its statutory grant of subject matter jurisdiction, a court must
zealously

insure

that

jurisdiction

exists

over

a

case,

and

should raise the question of subject matter jurisdiction at any
point

in

the

litigation

where

a

doubt

about

jurisdiction

arises.” Smith v. GTE, 236 F. 3d 1292, 1299 (llth Cir. 2001)
Rule 8(a) requires a plaintiff to include in her complaint “a
short and plain statement of the grounds upon which the court’s
jurisdiction depends.” In this action, the Court is unable to
discern, due to the incoherent nature of Plaintiff’s Complaint,
any

conceivable

establish

this

jurisdictional
Court’s

foundation.

jurisdiction,

after

The

failure

being

given

to
an

opportunity to replead, will result in the dismissal without
prejudice

of

this

action.

Pelletier,

3

921

F.2d

at

1522.

To establish federal subject matter jurisdiction for this
action, Plaintiff must show the existence of either diversity
jurisdiction(pursuant to 28 U.S.C. § 1332) or federal question
jurisdiction (pursuant to 28 U.S.C. § 1331).
See Taylor v.
Appleton, 30 F.3d 1365, 1367 (llth Cir. 1994)(“Congress granted
federal courts jurisdiction over diversity actions and cases
raising a federal question.”).

6

Accordingly, in repleading her Complaint, Plaintiff shall set
forth the basis for this Court’s jurisdiction.
Plaintiff is cautioned that the failure to file, by May 31,
2011,

an

amended

complaint

that

addresses

the

pleading

deficiencies noted above, will result in the dismissal of this
action for failure to prosecute and to obey the Court’s Order.
The Clerk is DIRECTED to send Plaintiff The Pro Se Litigant
Guide for her use.

Plaintiff is encouraged to study the Guide,

which includes an outline of a sample complaint, before she
attempts to draft her amended complaint.
DONE this the 11th day of May, 2011.
/S/ SONJA F. BIVINS_____
UNITED STATES MAGISTRATE JUDGE

7