Fishbein v. Stewart County Housing & Commission

Filing 24

ORDER granting 12 Motion to Dismiss Complaint; denying 20 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 09/30/2008. (mkw)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION * JULIUS FISHBEIN, * Plaintiff, * vs. * STEWART COUNTY HOUSING & COMMISSION, Defendant. * * * ORDER This case arises from a dispute between pro se Plaintiff Julius Fishbein and Defendant Stewart County Housing and Commission. CASE NO. 4:08-CV-19 (CDL)

Presently pending before the Court are Defendant's Pre-Answer Motion to Dismiss (Doc. 12) and Plaintiff's Motion for Summary Judgment (Doc. 20). For the following reasons, the Court grants Defendant's

motion and denies Plaintiff's motion as moot. FACTUAL BACKGROUND Plaintiff's Complaint consists of two pre-printed forms as well as a typewritten statement of factual allegations, which the Court reads as a whole. The first portion of the Complaint is a preprinted

form on which Plaintiff alleges that Defendant "refuses to return deposit of 360," "lies alot [sic]," "apt was never painted nor new shades," "wrongfull [sic] doing by housing," and "negligence."

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(Compl. 2 ¶ 4.)

Plaintiff seeks "fifteen thousand for all of this Id.

agravation [sic]."

The next portion of the Complaint appears to be a form utilized by a plaintiff seeking to bring an employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The majority of the form is incomplete, including the

portions requiring Plaintiff to describe the discriminatory conduct he experienced. However, in response to the inquiry, "Defendant(s)

conduct is discriminatory with respect to the following," Plaintiff indicated religion (Jewish) and sex (male). (Compl. 5 ¶ 6.) In

addition, Plaintiff responded to inquiries regarding Defendant's name, address, and nature of business. (Compl. 4 ¶¶ 1, 2.)

The final portion of the Complaint is a typewritten statement consisting of three general factual allegations. Plaintiff first

contends that the executive director of housing, identified as Lee Stephens, "does not know how to run housing and lies and is very very fresh to a senior citizen (plaintiff) and should be fired." (Compl.

7.) Plaintiff's next allegation is "that the Commission is Negligent in every way by not seeing what is going on with housing and with in it." (Id.) Plaintiff's final allegation is "that the federal

Department of housing and Urban development subsidize stewart county housing lumpkin and richland." negligence (Id.) and other The Complaint details

Stephens's

alleged

misdeeds;

Plaintiff's

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complaints about his housing and the method of his eviction; and the withholding of Plaintiff's security deposit. Defendant moves to dismiss Plaintiff's Complaint for four

reasons: (1) the Complaint fails to allege a basis for subject matter jurisdiction; (2) the Complaint fails to state a claim upon which relief can be granted; (3) Plaintiff's claim is frivolous and should therefore be dismissed pursuant to 28 U.S.C. § 1915(e)(2); and (4) Defendant is entitled to Eleventh Amendment immunity as a state agency. The Court finds that the Complaint fails to sufficiently Accordingly, the

allege a basis for subject matter jurisdiction. Court grants Defendant's motion to dismiss. DISCUSSION I. Standard of Review

Defendant moves to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The

Eleventh Circuit recognizes two types of challenges to a district court's subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A "facial attack" on a complaint

"require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction[.]" Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (second alteration in original) (internal quotation marks omitted). A

"factual attack" on a complaint "challenge[s] the existence of subject matter jurisdiction in fact, irrespective of the pleadings,

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and matters outside the pleadings . . . are considered." (internal quotation marks and citation omitted).

Id.

Because Defendant

contends that Plaintiff's Complaint fails to allege a sufficient factual basis for subject matter jurisdiction, Defendant's motion presents a facial attack on the Court's jurisdiction. Facial attacks on subject matter jurisdiction are treated

similarly to motions to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Both require the Court to take the allegations in See

Plaintiff's Complaint as true for purposes of the motion. Lawrence, 919 F.2d at 1528-29. factual matter (taken as

"A complaint must contain `enough to suggest'" each required

true)

jurisdictional element.

Rance v. D.R. Horton, Inc., No. 08-10213,

2008 WL 3864285, at *2 (11th Cir. Aug. 21, 2008) (quoting Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007)). "`It is

sufficient if the complaint succeeds in identifying facts that are suggestive enough to render the element plausible.'" Id. (quoting Watts, 495 F.3d at 1295-96). The Court also notes that because Plaintiff is proceeding in this Court pro se, it will "construe the complaint more liberally than it would formal pleadings drafted by lawyers." Powell v.

Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam)). Even given this liberal

standard, however, the Court concludes that the Complaint in this 4

case fails to sufficiently allege a factual basis for federal subject matter jurisdiction. to dismiss. II. Plaintiff's Complaint "In order to have subject matter jurisdiction, a district court must be able to exercise either diversity jurisdiction or federal question jurisdiction." 743 (11th Cir. 2006). Laurent v. U.S. Trustee, 196 F. App'x 740, Therefore, the Court grants Defendant's motion

"Diversity jurisdiction exists `if the matter

in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different states.'" Id. (quoting 28 U.S.C. § 1332(a)(1)). Federal question

jurisdiction exists when a claim "`aris[es] under the Constitution, laws, or treaties of the United States.'" 1331). Id. (quoting 28 U.S.C. §

"[T]he burden to establish the existence of federal subject

matter jurisdiction rests with the party bringing the claim," Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1248 n.2 (11th Cir. 2005), and the Federal Rules of Civil Procedure require that the plaintiff's complaint contain "a short and plain statement of the grounds for the court's jurisdiction," Fed. R. Civ. P. 8(a)(1). Even when construed liberally, Plaintiff's Complaint fails to reveal any plausible basis for the Court's jurisdiction. clearly fails to establish a factual basis for Plaintiff diversity

jurisdiction; in fact, Plaintiff alleges that both he and Defendant reside in the state of Georgia and that he seeks to recover only

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$15,000.

(Compl. 1-2 at ¶¶ 1, 2, 4.) Plaintiff's Complaint also

fails to allege a sufficient factual basis for federal question jurisdiction. The only federal law that the Complaint even

tangentially references is Title VII of the Civil Rights Act of 1964. (See Compl. 4.) However, Title VII is a statute that gives rise to Plaintiff never

a cause of action for employment discrimination.

alleges that he was employed by Defendant, and the Complaint is devoid of factual allegations describing unlawful discrimination of any type. It appears that Plaintiff asserts claims which are ordinarily state law claims: negligence, failure to maintain rental premises, constructive eviction, and wrongful eviction.1 While "pleading

requirements under the federal system [are] generally liberal ones for plaintiffs . . . a court's duty to liberally construe a

plaintiff's complaint in the face of a motion to dismiss is not the equivalent of a duty to re-write it for [him]." Peterson v. Atlanta

Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993) (internal citation omitted). The Court simply cannot glean from Plaintiff's filings any basis for bringing this lawsuit in federal court.

In his response to Defendant's motion to dismiss, Plaintiff contends that he was "[e]victed [on] account of me Fileing [sic] complaints about the landlords [sic] poor performance" and that "by makeing [sic] my complaints I am protected by the Whistle Blower Statutes." (Resp. to Mot. to Dismiss 1.) However, the Court cannot determine from Plaintiff's factual allegations what "Whistle Blower Statutes" Plaintiff references or how any allegedly wrongful or retaliatory eviction gives rise to federal subject matter jurisdiction. Notably, Plaintiff makes no claims that any of his constitutional rights were violated.

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CONCLUSION Plaintiff's Complaint fails to allege a sufficient factual basis for subject matter jurisdiction, and therefore Defendant's Pre-Answer Motion to Dismiss (Doc. 12) is granted. Because the Court grants

Defendant's motion, the Court denies Plaintiff's Motion for Summary Judgment (Doc. 20) as moot.

IT IS SO ORDERED, this 30th day of September, 2008.

S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE

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