WIMBERLEY v. JONES et al

Filing 21

ORDER dismissing Plaintiff's Complaint due to lack of subject matter jurisdiction. Ordered by Judge Clay D. Land on 07/30/2012. (CGC) Copy mailed to plaintiff on July 30, 2012. Modified on 7/30/2012 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MARGARETRETO WIMBERLEY,

*

Plaintiff,

*

vs.

*
CASE NO. 4:12-CV-166 (CDL)

ROY JONES, JR., ROY JONES, SR., *
MICHAEL JORDAN, et al.,
*
Defendants.
*
O R D E R
Plaintiff Margaretreto Wimberley (“Wimberley”), proceeding
pro se, brings this action against a multitude of defendants
including,

among

others,

George

W.

Bush,

Oprah

Winfrey,

the

Spalding County Sheriff, several popular R&B artists, and every
member

of

the

Atlanta

Braves,

(collectively, “Defendants”).
two

pages,

alleging

secret

Falcons,

Hawks

and

Thrashers

The Complaint rambles for fortygovernment

surveillance,

theft

of

“life supports,” and an elaborate conspiracy to harm Wimberley.
Compl., ECF No. 1.

For the reasons set forth below, the Court

dismisses the Complaint because this Court lacks subject matter
jurisdiction over the claims.
DISCUSSION
“Subject
based

upon

jurisdiction.”

matter
federal

jurisdiction
question

in

a

federal

jurisdiction

court
or

may

be

diversity

Walker v. Sun Trust Bank of Thomasville, Ga.,

363 F. App’x 11, 15 (11th Cir. 2010) (per curiam).
“determines

at

any

time

that

it

lacks

If a court

subject-matter

jurisdiction, the court must dismiss the action.”

Fed. R. Civ.

P. 12(h)(3); accord Walker, 363 F. App’x at 16-17 (affirming sua
sponte dismissal of case on the ground that the court lacked
subject matter jurisdiction because the pro se plaintiff failed
to

allege

an

essential

element

of

his

federal

claim).

As

discussed in more detail below, the Court finds that neither
diversity jurisdiction nor federal question jurisdiction exists
in this action.
I.

Diversity Jurisdiction
The district courts of the United States have jurisdiction

over

civil

actions

in

which

the

parties

are

citizens

of

different states and the amount in controversy is more than
$75,000, not including interest and costs. 28 U.S.C. § 1332.
“Complete diversity requires that no defendant in a diversity
action

be

a

citizen

of

the

same

state

as

any

plaintiff.”

MacGinnitie v. Hobbs Grp., LLC, 420 F.3d 1234, 1239 (11th Cir.
2005), abrogated on other grounds by Hertz Corp. v. Friend, 130
S. Ct. 1181, 1186 (2010).
resident

of

Georgia.

Wimberley alleges that she is a

Compl.

2.

Among

many

others,

the

Complaint names as a Defendant the sheriff of Spalding County,
Georgia based in part on incidents that allegedly occurred in
the Spalding County Jail.

Compl. 3.

2

Given that Wimberley and

the Spalding County Sheriff are both Georgia citizens, there is
not complete diversity of citizenship between Wimberley and the
Defendants,

and

this

Court

lacks

subject

matter

jurisdiction

under 28 U.S.C. § 1332.
II.

Federal Question Jurisdiction
“Absent diversity of citizenship, a plaintiff must present

a ‘substantial’ federal question in order to invoke the district
court's jurisdiction.” Wyke v. Polk Cnty. Sch. Bd., 129 F.3d
560, 566 (11th Cir. 1997) (citing Hagans v. Lavine, 415 U.S.
528, 537 (1974)).

An insubstantial question is one that is

“obviously

merit.”

without

Id.

Construing

the

Complaint

liberally, it appears that Wimberley attempts to bring claims
under 18 U.S.C. § 246; 3 U.S.C. § 411; Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.;
the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C.
§ 701, et seq.; and the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101, et seq.

Compl. 12-13.

reasons

finds

set

forth

below,

the

Court

that

For the

Wimberley’s

attempted federal claims are obviously without merit and fail to
present

a

substantial

question

sufficient

to

invoke

federal

question jurisdiction.
A.

Claim under 18 U.S.C. § 246

Wimberley states that Defendants violated her “rights under
code 18 USC 246 Deprivation of relief-benefits.”

3

Compl. 12.

18 U.S.C. § 246 is a criminal statute that provides no private
right of action.

E.g., Shahin v. Darling, 606 F. Supp. 2d 525,

531 n.7 (D. Del. 2009); Dugar v. Coughlin, 613 F. Supp. 849, 852
n.1

(S.D.N.Y.

1985).

Therefore,

Wimberley’s

attempted

claim

under 18 U.S.C. § 246 is obviously without merit.
B.

Claim under 3 U.S.C. § 411

Wimberley also alleges that Defendants violated “Sec 411
Rights.”

Compl. 13.

The Court construes this allegation as a

general claim under 3 U.S.C. § 411, which prohibits employment
discrimination
branch.

against

covered

employees

See generally 3 U.S.C. § 411.

of

the

executive

Wimberley did not allege

that she is or was an employee of a unit of the executive
branch, so her attempted claim under 3 U.S.C. § 411 is obviously
without merit.
C.

Claim under Title VII

Wimberley

further

alleges

that

Defendants

violated

her

right to “protection under Title VII of the Civil Right (sic)
Act of 1964.”

Compl. 13.

Under Title VII, it is unlawful for

an employer to discriminate against its employees and applicants
for employment based on race, color, religion, sex or national
origin.
a

42 U.S.C. § 2000e-2(a).

plaintiff

must

first

exhaust

“Before suing under Title VII,
her

administrative

remedies.”

H&R Block E. Enters., Inc. v. Morris, 606 F.3d 1285, 1295 (11th
Cir. 2010).

Wimberley did not allege that any Defendant was her

4

employer, and she did not allege who discriminated against her,
how she was discriminated against, or that she exhausted her
administrative

remedies.

Her

attempted

Title

VII

claim

is

obviously without merit.
D.

Claim under the Rehabilitation Act

Wimberley

also

alleges

that

“[R]ehabilitation Act of 1973.”

Defendants

Compl. 13.

violated

the

The Rehabilitation

Act “prohibits discrimination against handicapped persons in any
program

or

activity

receiving

federal

financial

assistance.”

U.S. Dept. of Transp. v. Paralyzed Veterans of Am., 477 U.S.
597, 599 (1986).

Beyond stating that Defendants violated the

Rehabilitation Act, Wimberley fails to allege either that she is
disabled

or

that

a

program

receiving

federal

financial

assistance discriminated against her because of a disability. 1
Her Rehabilitation Act claim is obviously without merit.
E.

Claim under the ADA

Finally, Wimberley alleges that Defendants violated “Title
I

of

Title

the
I

American
of

the

Disabilities

ADA

prohibits

Ac

(sic)

employers

1990.”
from

Compl.

13.

discriminating

against qualified individuals with disabilities because of the
disability.

Americans with Disabilities Act of 1990 §§ 101-108,

1

The only portion of the Complaint that mentions any disability
states: “they . . . discriminated against me using hate crime and lies
also cause me to lose profit and loss of reputation because I
supposedly show my teeth which they claim is a disability.
And
discriminated of me being disable that they cause, because it cause me
to be overly wealthy (sic).” Compl. 12.

5

Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42
U.S.C. §

12111-12117).

As

with

Title

VII,

“[p]laintiffs

proceeding under the ADA must comply with . . . the duty to
exhaust

administrative

remedies.”

EEOC

v.

Summer

Classics,

Inc., No. 11-14541, 2012 WL 2094333, at *1 (11th Cir. June 12,
2012) (per curiam).

Wimberley did not allege that she is a

qualified individual with a disability, she did not allege that
she was an employee of any of the Defendants, and she did not
make any factual allegations regarding how she was discriminated
against because of a disability.

She also did not allege that

she exhausted her administrative remedies.

For all of these

reasons, Wimberley’s attempted ADA claim is obviously without
merit.
CONCLUSION
For

the

reasons

set

forth

above,

the

Court

finds

that

neither diversity jurisdiction nor federal question jurisdiction
exists

in

this

action.

Therefore,

the

Court

dismisses

Wimberley’s Complaint (ECF No. 1) for a lack of subject matter
jurisdiction
12(h)(3).

pursuant

to

Federal

Rule

of

Civil

Procedure

All of Wimberley’s pending motions are now moot.

IT IS SO ORDERED, this 30th day of July, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

6