Wallace v. Askar et al

Filing 6

ORDER OF DISMISSAL denying 2 Motion for Leave to Proceed in forma pauperis as the Court finds no plausible basis for jurisdiction; dismissing the Amended Complaint without prejudice for lack of subject-matter jurisdiction. The Clerk shall close the case. Signed by Judge John E. Steele on 3/27/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN WILLIAM WALLACE,
Plaintiff,
v.

Case No: 2:14-cv-150-FtM-29DNF

KOUSAY SAM ASKAR, personally
and severally, THE SEMINOLE
TRIBE
OF
FLORIDA,
EVANS
ENERGY PARTNERS, LLC, and
JANE AND JOHN DOES, 1-100,
Defendants.
ORDER OF DISMISSAL
This matter comes before the Court on review of the Amended
Complaint (Doc. #5) filed on March 26, 2014.1

On March 20, 2014,

the Court dismissed the original “Complaint” for lack of subjectmatter jurisdiction with leave to file an Amended Complaint. (Doc.
#4.)

Plaintiff

has

now

filed

an

Amended

Complaint

with

an

under

18

additional paragraph to assert a basis for jurisdiction.
Plaintiff

asserts

that

jurisdiction

is

present

U.S.C. § 1001, equitable relief is sought under Title 42 of the
United States Code, and the amount in controversy exceeds $75,000.
(Doc. #5, ¶ 5.)

1

If the Court determines “at any time” that it lacks subjectmatter jurisdiction, the Court must dismiss the case.
Fed. R.
Civ. P. 12(h)(3).

Title 18, United States Code, Section 1001 addresses criminal
fraud and concealment from a government agency with respect to
matters within the jurisdiction of the three branches of the
federal government.

18 U.S.C. § 1001.

Section 1001 does not

provide a basis for a civil, private cause of action.

Hanna v.

Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960)2 (“The sections
of Title 18 may be disregarded in this suit. They are criminal in
nature and provide no civil remedies.”); United States v. Lawson,
809 F.2d 1514, 1517 (11th Cir. 1987) (“To make any false or
fraudulent statement in any matter within the jurisdiction of a
federal agency is a federal crime under 18 U.S.C. § 1001.”). Since
plaintiff is not authorized to bring a civil action under a
criminal statute, or a criminal action on behalf of the United
States of America, and no fraud or concealment from a government
agency is alleged, the Court finds that plaintiff cannot assert
federal jurisdiction on this basis.
To the extent that plaintiff is asserting a diversity of
jurisdiction as a basis for jurisdiction, the Amended Complaint
still fails to sufficiently state the citizenship of the parties,
see Doc. #5, ¶¶ 1-4, and even with the requested damages increased

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.

2

to include an additional $100,000, id., ¶ 37, the Court finds no
diversity of jurisdiction presented under 28 U.S.C. § 1332(a).
is

unclear

how

any

relief

sought

falls

under

Title

42,

It
and

plaintiff’s causes of action do not fall under any federal statute.
The

Court

jurisdiction
Therefore,

finds

after
the

that

being

Amended

plaintiff
provided

has

one

Complaint

not

alleged

opportunity

will

be

to

dismissed

federal
do

so.

without

prejudice to filing in state court, and the case will be closed.
Accordingly, it is now
ORDERED:
1. The

Application

to

Proceed

in

District

Court

Without

Prepaying Fees or Costs (Doc. #2) is denied as the Court
finds no plausible basis for subject-matter jurisdiction.
2. The

Amended

Complaint

(Doc.

#5)

is

dismissed

without

prejudice for lack of subject-matter jurisdiction. Finding
that

plaintiff

is

unable

to

establish

subject-matter

jurisdiction, the Clerk shall terminate all pending motions
and close the case.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2014.

Copies: Plaintiff

3

27th

day of