Real v. The City of Fort Myers et al

Filing 51

ORDER re 14 Amended Complaint filed by Mamberto Real. The Second Amended Complaint is DISMISSED without prejudice. The Clerk is DIRECTED to terminate any pending motions and close this case. Signed by Judge Sheri Polster Chappell on 5/7/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MAMBERTO REAL,
Plaintiff,
v.

Case No: 2:17-cv-117-FtM-38CM

THE CITY OF FORT MYERS,
MICHEL PERRY and MICHAEL
PERRY,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on sua sponte review of the Second Amended
Complaint. (Doc. 14). Plaintiff Mamberto Real, appearing pro se, brings this action
against the City of Fort Myers and Officer Michael Perry under 42 U.S.C. § 1983 after a
late-night encounter between him and Officer Perry.
Real was sleeping in his car around 12:40 a.m. in a local company’s parking lot.
Officer Perry allegedly approached Real’s car with a flashlight and stated, “They do not
want you here, I already know you have driver license; you have five seconds to leave,
or I am going to shoot you NIGGER.” (Doc. 14 at ¶ 8). Officer Perry counted to five and
allegedly pointed his gun at Real, who left the parking lot without injury or arrest. (Doc.
14). Real filed this suit about a week later.

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The crux of Real’s suit is that Officer Perry violated his Fourth, Eighth, and
Fourteenth Amendment rights by pointing his gun at Real and using a racial slur. Real
also claims that the City violated the same amendments through its policy, custom, and
procedure. Even construing Real’s Second Amended Complaint liberally because of
his pro se status, the Court finds it lacks subject matter jurisdiction.
“A federal court not only has the power but also the obligation . . . to inquire into
jurisdiction whenever the possibility that jurisdiction does not exist arises.” Fitzgerald v.
Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985); Hallandale Prof’s Fire
Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 759 (11th Cir. 1991) (stating
“every federal court operates under an independent obligation to ensure it is presented
with the kind of concrete controversy upon which its constitutional grant of authority is
based”). Federal courts are forums of limited jurisdiction. Fitzgerald, 760 F.2d at 1250
(citation omitted). And “because 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 itself raise the question of subject matter jurisdiction at any point
in the litigation where a doubt about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d
1292, 1299 (11th Cir. 2001) (citations omitted).
Section 1983 itself does not grant federal courts subject matter jurisdiction. Courts
have subject matter jurisdiction over § 1983 claims under either 28 U.S.C. § 1343(a)(3)
or 28 U.S.C. § 1331. Under § 1343(a)(3)
[t]he district courts shall have original jurisdiction of any civil
action authorized by law to be commenced by any person: (3)
To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the United
States or by any Act of Congress providing for equal rights of

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citizens or of all persons within the jurisdiction of the United
States[.]”
28 U.S.C. § 1343(a)(3). Section 1331 separately provides that “district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.” Id. § 1331. “Under § 1331, federal courts have federal-question
jurisdiction over suits ‘in which a well-pleaded complaint establishes that federal law
creates the cause of action or that the plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.’” Dinardo v. Palm Beach Cty. Cir. Ct.
J., 199 F. App’x 731, 737 (11th Cir. 2006) (citation omitted).
“Merely asserting a federal cause of action[, however,] is not enough to establish
federal question jurisdiction.” See Sweeney v. McConnell, No. 3:11CV517/MCR/EMT,
2011 WL 6752424, at *2 (N.D. Fla. Nov. 23, 2011), report and recommendation adopted,
3:11CV517/MCR/EMT, 2011 WL 6757208 (N.D. Fla. Dec. 23, 2011) (citation omitted).
And mere assertions are what Real pleads in the Second Amended Complaint.
Although Real references § 1983 and certain constitutional amendments, it is
unclear what constitutional rights Defendants allegedly violated when Real was neither
arrested nor seized. See Martinez v. Nienhuis, No. 8:14-cv-2645-T-33AEP, 2014 WL
5439772, at *1 (M.D. Fla. Oct. 21, 2014) (dismissing a complaint for lack of jurisdiction
when the plaintiff made a conclusory allegation that the case was brought under § 1983).
And the Court has no obligation to hypothesize a federal claim, even considering Real’s
pro se status. See Gibbs v. United States, 865 F. Supp. 2d 1127, 1151 (M.D. Fla. 2012)
(“The leniency afforded to pro se pleadings does not give a court license to serve as de
facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain
an action.” (internal quotation omitted)). To complicate matters, the Second Amended

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Complaint fails to allege specific causes of action and the factual allegations to support
each. In short, Real does not allege any elements of constitutional violations to give rise
to federal question jurisdiction. The Court thus lacks subject matter jurisdiction and
dismisses this case without prejudice.
Accordingly, it is
ORDERED:
(1) The Second Amended Complaint is DISMISSED without prejudice.
(2) The Clerk is DIRECTED to terminate any pending motions and close this case.
DONE and ORDERED in Fort Myers, Florida this 7th day of May 2018.

Copies: All Parties of Record

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