Caldwell v. Klinker et al

Filing 13

ORDER: Defendant Sharon Hayes' Motion to Dismiss Plaintiff's Amended Complaint 12 is GRANTED. Caldwell has until and including January 5, 2015, to file his Second Amended Complaint. Signed by Judge Virginia M. Hernandez Covington on 12/23/2014. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEITH ROBERT CALDWELL, SR.,
Plaintiff,
v.

Case No. 8:14-cv-2708-T-33EAJ

SUZANNE M. KLINKER, ET AL.,
Defendants.
________________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Sharon Hayes’ Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. # 12), filed on December 4, 2014. Pro Se
Plaintiff Keith R. Caldwell failed to file a response in
opposition thereto pursuant to the local rules and the time
to do so has now passed. After due consideration of the
pleadings filed, this Motion is granted.
I. Background
On

October

30,

2014,

Caldwell

initiated

this

action

against Suzanne Klinker, Susan Cutchall, Sharon Hayes, and
John Timberlake, setting forth various claims for disregard
of health and welfare of veterans, violations of Florida’s
Baker Act law, and medical malpractice. (See Doc. # 1). In
the

Complaint,

Caldwell

contends

that

this

Court

has

jurisdiction

over

this

action

as

Defendants

allegedly

violated his civil and constitutional rights. (Id.). Upon
review of the Complaint, the Court determined that it lacked
subject matter jurisdiction over this matter and dismissed
the Complaint. (Doc. # 5). Caldwell then filed an Amended
Complaint on November 10, 2014. (Doc. # 7). Caldwell served
Hayes, individually, with a copy of the Amended Complaint on
November 13, 2014. 1 (Doc. # 12). Thereafter, on December 4,
2014, Hayes filed the present Motion to Dismiss pursuant to
12(b)(1) and 12(b)(6), which is ripe for this Court’s review.
(Id.).
II. Legal Standard
A. Rule 12(b)(1)- Lack of Subject Matter Jurisdiction
Federal

courts

are

courts

of

limited

jurisdiction.

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
“[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

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt

The Court notes from a review of the record that no other
Defendant has been served at this time.
1

2

about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001). Motions to dismiss for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may
attack jurisdiction facially or factually. Morrison v. Amway
Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003).
A facial attack on the complaint requires “the court
merely to look and see if the plaintiff has sufficiently
alleged a basis for subject matter jurisdiction, and the
allegations in [the] complaint are taken as true for the
purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990)(quoting Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980)). Factual attacks,
in comparison, challenge “the existence of subject matter
jurisdiction in fact, irrespective of the pleadings. . . .”
Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)(quoting
Lawrence, 919 F.2d at 1529). When the jurisdictional attack
is factual, the presumption of truthfulness afforded to a
plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach.
Scarfo, 175 F.3d at 960. Because the very power of the Court
to hear the case is at issue, the Court is free to weigh
evidence outside the four corners of the complaint. Eaton v.
Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982).
B. Rule 12(b)(6) - Failure to State a Claim

3

On a motion to dismiss, this Court accepts as true all
of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting

4

Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
II.

Discussion
a. Failure to State a Claim
Hayes

contends

that

the

allegations

in

the

Amended

Complaint “do not identify or otherwise describe any act or
omission committed by [] Hayes, let alone any act or omission
that caused or contributed to [Caldwell’s] alleged damages or
would support a cause of action against [] Hayes.” (Doc. # 12
at

2).

Hayes

argues

that

the

“conclusory

allegations”

contained within the Amended Complaint are “insufficient to
plausibly suggest that [] Hayes committed any act or omission
that amounted to medical malpractice, a federal or state
statutory

violation,

or

a

violation

of

[Caldwell’s]

constitutional rights. (Id. at 3). Hayes notes that “although
[Caldwell]

cited

specific

statutes

and

constitutional

provisions that Defendants allegedly violated, he failed to
include a ‘short and plain statement of the claim[s] against
[Hayes] showing that [he] is entitled to relief,’” as required
by the Federal Rules of Civil Procedure. (Id. at 5-6).

5

Furthermore, Hayes asserts that to the extent Caldwell
attempts to allege claims for medical malpractice against
Defendants, Caldwell has not alleged Hayes is a healthcare
provider and has “failed to plead that he complied with the
statutory

presuit

requirements

Statutes.”

(Id.

Caldwell’s

malpractice

at

6).

of

Chapter

Accordingly,

claims

are

Hayes

subject

766,

Florida

states
to

that

dismissal.

(Id.). Hayes avers that the Amended Complaint should also be
dismissed for failure to comply with the Federal Rules of
Civil Procedure. (Id. at 7).
From the Court’s review, the Amended Complaint consists
entirely

of

legal

conclusions

and

incoherent

factual

allegations and fails to set forth a cause of action or to
reference any particular statute or Constitutional provision
that Hayes allegedly violated.

As a result, Hayes is forced

to hypothesize based on the vague allegations what statutory
or Constitutional violations Caldwell is asserting against
her. Pleadings of this nature violate Federal Rule of Civil
Procedure 8(a), which requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
b. Subject Matter Jurisdiction
Finally,

Hayes

contends

that

the

Amended

Complaint

should be dismissed as it does not “cure the subject matter

6

deficiency previously identified by the Court by referencing
several federal statutes and constitutional amendments” as
these mere references are insufficient to give the Court
federal question jurisdiction over claims against Hayes. (Id.
at 8). This Court agrees.
Construing Caldwell’s Amended Complaint liberally due to
his

pro

se

status,

the

Court

reaches

the

inescapable

conclusion that this Court lacks subject matter jurisdiction
over

this

action.

constitutional

Although

amendment

and

Caldwell
federal

has

referenced

statutes,

a

mere

reference to federal law is not enough to establish federal
question jurisdiction. A case “arises under” federal law
where federal law creates the cause of action or where a
substantial disputed issue of federal law is a necessary
element of a state law claim. See Franchise Tax Bd. of Cal.
v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1,
9-10 (1991).
The

Court

has

no

obligation

to

hypothesize

federal

claims, even considering Caldwell’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

7

rewrite an otherwise deficient pleading in order to sustain
an action.”)(internal quotation omitted).
Although Caldwell alleges this Court has jurisdiction,
he

has

again

failed

to

establish

diversity

jurisdiction

pursuant to 28 U.S.C. § 1332. In order to sufficiently allege
diversity jurisdiction, Caldwell must demonstrate complete
diversity of citizenship and that the amount in controversy
exceeds $75,000. See 28 U.S.C. § 1332. In order to demonstrate
complete

diversity,

citizenship

is

Caldwell

diverse

must

from

the

establish

that

citizenship

of

his
every

Defendant. As explained in Molinos Valle Del Cibao, C. por A.
v.

Lama,

633

F.3d

1330,

1342

n.12

(11th

Cir.

2011),

"citizenship, not residence, is the key fact that must be
alleged . . . to establish diversity for a natural person."
In addition, Caldwell must establish that the amount in
controversy exceeds $75,000.
Upon review of the Complaint, Caldwell has failed to
definitively establish diversity jurisdiction as Caldwell has
alleged

that

Specifically,
Petersburg,

all

parties

Caldwell
Florida.

are

provides
He

also

residents
that

he

alleges

of

resides

that

Florida.
in

St.

Klinker

and

Cutchall live in Bay Pines, Florida, Hayes lives in St.
Petersburg,

Florida,

and

Timberlake

8

lives

in

Clearwater,

Florida. (Doc. # 1). As stated above, it is citizenship and
not residence that is essential to the diversity analysis.
Furthermore, it is unclear from the Amended Complaint what
causes of action Caldwell attempts to allege that would give
this Court subject matter jurisdiction arising from federal
law.
Accordingly, based on the above, this Court determines
that Caldwell has failed to state a claim against Hayes and
has failed to establish that this Court has subject matter
jurisdiction over this action. Therefore, Hayes' Motion is
granted. However, this case is dismissed without prejudice so
that Caldwell has one final opportunity to file a Second
Amended Complaint - by January 5, 2015 - to demonstrate that
this Court has subject matter jurisdiction over this action
and allege a claim against all Defendants.
The Court reminds Caldwell that he has until February
25, 2015, to effectuate service on the remaining Defendants
in this action. Failure to properly serve the remaining
Defendants by February 25, 2015, will result in dismissal of
those Defendants from this action without further notice.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:

9

(1)

Defendant Sharon Hayes’ Motion to Dismiss Plaintiff’s
Amended Complaint (Doc. # 12) is GRANTED.

(2)

Caldwell has until and including January 5, 2015, to
file his Second Amended Complaint.
DONE and ORDERED in Chambers in Tampa, Florida, this

23rd day of December, 2014.

Copies: All parties of record

10