Briscoe v Pennymac Services, LLC et al

Filing 16

ORDERED: Akkima Dannielle Briscoe's pro se paper (Doc. #1) seeking a permanent injunction is DENIED without prejudice for lack of subject matter jurisdiction. Briscoe may file an amended complaint by May 24, 2022. Failure to do so will result in the Court closing this case without further notice. Signed by Judge Sheri Polster Chappell on 5/10/2022. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AKKIMA DANNIELLE BRISCOE,
Plaintiff,
v.

Case No.: 2:22-cv-267-SPC-MRM

PENNYMAC SERVICES, LLC,
HAROLD SMITH, and SHARON
SMITH,
Defendants.
/
OPINION AND ORDER1
Plaintiff, proceeding pro se, instituted this suit by filing a handwritten
document titled “special priority, equity does what ought to have been done,
writ of assistance, urgent, priority.” (Doc. 1). It seems Plaintiff is complaining
about trespass after her home was foreclosed on and requests a “writ of
assistance possession.” (Doc. 1). After the Magistrate Judge warned Plaintiff
that the action appeared to be subject to dismissal as frivolous based on
sovereign citizen legal theories (Doc. 2), Plaintiff requested that the Clerk of
Court be appointed as trustee and issue a replevin for return of her property

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(Doc. 7); she filed a “notice of trust” based on the principal magnified in the
1611 King James Bible at Psalms 98:9, which is preserved by the 97th
Congress at Public Law 97-280, signed as “beneficial owner” (Doc. 11); and filed
an “affidavit of knowledge of fact” (Doc. 12). Plaintiff has also moved to proceed
in forma pauperis. (Doc. 15).
Under 28 U.S.C. § 1915(a), the Court may authorize a civil suit to proceed
without requiring a plaintiff to prepay the filing fee, but it must also dismiss a
case if at any time it determines that the action is frivolous. See § 1915(e)(2).
An action is frivolous if the allegations are baseless, fanciful, fantastic,
delusional, or “without argument or merit in either law or fact.” See Neitzke v.
Williams, 490 U.S. 319, 324 (1989) (internal quotations omitted). Frivolity
likely fits the bill here, but before the Court can even reach that finding, it
must ensure it has subject matter jurisdiction. And the Court finds it has no
subject matter jurisdiction to hear this action and afford the relief that Plaintiff
requests.
Federal courts must ensure such jurisdiction sua sponte when (as here)
it is lacking. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). Mostly, a federal
court has original jurisdiction over two types of cases—federal question (28
U.S.C. § 1331) and diversity (28 U.S.C. § 1332). The burden to establish
jurisdiction falls on the party asserting it, who is Plaintiff here. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). If a court decides it
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has no jurisdiction, it “must dismiss the compliant in its entirety.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006).
There is no federal question. Grable & Sons Metal Prods., Inc. v. Darue
Eng’g & Mfg., 545 U.S. 308, 312 (2005) (noting § 1331 “is invoked by and large
by plaintiffs pleading a cause of action created by federal law”). To be sure, the
Court must liberally construe the pleadings. Erickson v. Pardus, 551 U.S. 89,
94 (2007). Yet it cannot act as counsel for Plaintiff. E.g., United States v.
Cordero, 7 F.4th 1058, 1068 n.11 (11th Cir. 2021). And from even the most
liberal construction, there is no federal or constitutional question to divine
from Plaintiff’s paper. Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc.,
535 U.S. 826, 830-31 (2002).
With federal question out, the Court turns to whether there is diversity
jurisdiction. For this type of subject matter jurisdiction, the parties must be
completely diverse and the amount in controversy must exceed $75,000. 28
U.S.C. § 1332(a); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
552 (2005). Here, Plaintiff has satisfied neither requirement because she has
pled no party’s citizenship and states no amount in controversy.
Because the Court cannot conclude it has jurisdiction, it dismisses this
action without prejudice.

Plaintiff may file an amended complaint that

adequately pleads subject matter jurisdiction. See 28 U.S.C § 1653.

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Besides the jurisdictional problems, Plaintiff also has a procedural one.
Plaintiff’s paper is in the form of a letter, which is improper. Local Rule 3.01(j)
(“A party must not use a letter, email, or the like to request relief.”). Every
civil action starts with a complaint that identifies the Court’s subject matter
jurisdiction, short statement of the claim(s), demand for relief, signature block,
attachments (if needed), civil cover sheet, and summons. So if Plaintiff intends
to proceed pro se (or without a lawyer), she should review the Court’s Guide to
Proceeding Without a Lawyer, which is available on the Court’s website, 2 for
information on litigating in federal court.
Accordingly, it is now ORDERED:
1. Akkima Dannielle Briscoe’s pro se paper (Doc. 1) seeking a permanent
injunction is DENIED without prejudice for lack of subject matter
jurisdiction.
2. Briscoe may file an amended complaint by May 24, 2022. Failure
to do so will result in the Court closing this case without
further notice.
DONE and ORDERED in Fort Myers, Florida on May 10, 2022.

Copies: All Parties of Record

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https://www.flmd.uscourts.gov/litigants-without-lawyers
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