Sandifer v. Hopkins
ORDER AND REASONS granting 8 Motion to Dismiss for Lack of Jurisdiction. The plaintiffs claims are hereby dismissed without prejudice. Signed by Judge Martin L.C. Feldman on 1/8/2018. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELLIS LEE SANDIFER, JR.
ORDER AND REASONS
Before the Court is Fred Hopkins’s motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(1).
For the reasons that
follow, the motion is GRANTED.
This litigation arises from allegations that the defendant
perpetrated a hate crime against the plaintiff by beating him with
a stick, smashing the back windshield of the plaintiff’s car, and
threatening to kill the plaintiff with a shotgun. 1
motivated by the Black Lives Matter movement.
Where, as here, the defendant seeks to dismiss the plaintiff’s
complaint, the Court takes as true the plaintiff’s allegations.
At 7:30 a.m. on July 9, 2016, Ellis Lee Sandifer, Jr. drove
to the house of his cousin, David Brady, on General Pershing Street
in New Orleans.
Sandifer and Brady had planned to go car shopping
Sandifer honked his car’s horn and decided to smoke a cigarette
while he waited.
Meanwhile, Brady’s neighbor, Frank Hopkins,
walked across the street from his house; he approached Sandifer
with a stick in his hand, while screaming at Sandifer about the
Black Lives Matter movement and the murders of the Dallas police
Thinking Hopkins (a white male) was joking, Sandifer (a
black male) laughed.
But Hopkins was not joking.
at Sandifer: “You can’t do what you want around here.
Sandifer leaned into his car, retrieved his pack of
cigarettes, and went inside Brady’s house.
Five minutes later, Sandifer returned to and got into his
Hopkins also returned to Sandifer’s car, still carrying a
stick, and yelled at Sandifer about the Dallas and Baton Rouge
Sandifer told Hopkins that he did not want to
hear about that.
Hopkins poked Sandifer’s car with the stick.
Sandifer told Hopkins “it is too early for all that and no one
have time for this.”
Hopkins then hit Sandifer’s car with the
stick he was carrying.
Sandifer exited his car and asked Hopkins,
“what’s your problem?”
Hopkins responded by walking to the back
of Sandifer’s car and with the stick, hitting the back windshield
so hard it shattered.
Before Sandifer could react, Hopkins then began swinging the
stick at Sandifer’s face.
As Sandifer raised his left arm to block
his head and face from the stick, the stick struck his left arm
three or four times, ultimately causing his arm to break.
Hopkins stopped hitting Sandifer with the stick, he walked across
the street to his garage and retrieved a shotgun. Hopkins screamed
about black people generally and also threatened Sandifer, “I’ll
Sandifer yelled back, “It’s not that serious. What’s
Hopkins continued to yell about the Black Lives
Matter movement and police shootings.
Hopkins then went inside
his house. When he emerged, he got into his truck, backed up and
hit the car parked behind him, and sped off.
Department officers, who arrived on scene along with an ambulance,
which transported Sandifer to the Ochsner Baptist Hospital.
x-rays revealed that surgery was necessary to repair his broken
arm, Sandifer was admitted to the hospital.
The next day, he
Unable to work as a United States Postal
accumulating the hours he needed to maintain insurance coverage.
On July 10, 2017, Sandifer, pro se, sued Hopkins, seeking to
recover compensatory damages. 2
He alleges that he and Hopkins are
both Louisiana residents, and that the Court has federal question
subject matter jurisdiction based on 28 U.S.C. § 1331 and 18 U.S.C.
Hopkins now seeks to dismiss Sandifer’s complaint on the
ground that this Court lacks subject matter jurisdiction.
Federal courts are courts of limited jurisdiction, possessing
only the authority granted by the United States Constitution and
conferred by the United States Congress.
Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001).
Indeed, "[i]t is to be
presumed that a cause lies outside this limited jurisdiction," the
Supreme Court has observed, "and the burden of establishing the
contrary rests upon the party asserting jurisdiction."
If the Court lacks the statutory or
constitutional power to adjudicate a claim, the claim must be
dismissed for lack of subject matter jurisdiction.
Sandifer alleges that he attempted to proceed with his case in
New Orleans Municipal Court, but that his case was declined by the
Ass’n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d
1006, 1010 (5th Cir. 1998).
A dismissal based on lack of subject
matter jurisdiction “is not a determination of the merits and
[therefore] does not prevent the plaintiff from pursuing a claim
in a court that [has] proper jurisdiction.”
Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The burden of proof
for a Rule 12(b)(1) motion to dismiss is on the party asserting
King v. U.S. Dep't of Veterans Affairs, 728 F.3d
410, 416 (5th Cir. 2013); Ramming, 281 F.3d at 161.
To meet that
preponderance of the evidence that the court has jurisdiction based
on the complaint and evidence.”
King, 728 F.3d at 413.
may find a plausible set of facts to support subject matter
complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented
by undisputed facts plus the court's resolution of disputed facts.”
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
The standard of review applicable to motions to dismiss under
Rule 12(b)(1) is similar to that applicable to motions to dismiss
under Rule 12(b)(6).
See Williams v. Wynne, 533 F.3d 360, 364-65
n.2 (5th Cir. 2008)(observing that the Rule 12(b)(1) and Rule
12(b)(6) standards are similar, but noting that applying the Rule
12(b)(1) standard permits the Court to consider a broader range of
materials in resolving the motion).
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”
See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).
But, in deciding whether dismissal is
warranted, the Court will not accept conclusory allegations in the
complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
Although “pro se complaints are held to less stringent standards
than formal pleadings drafted by lawyers...conclusory allegations
or legal conclusions masquerading as facts will not suffice” to
withstand a motion to dismiss.
Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002)(citations omitted).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
Iqbal, 556 U.S. at 678.
In contesting this Court’s subject matter jurisdiction, the
defendant submits that the plaintiff fails to state a claim arising
under federal law.
The plaintiff counters that his complaint
alleges that Hopkins’s racially motivated attack caused physical
injury and property damage sufficient to confer federal question
The Court disagrees.
The only potential predicate for this Court’s subject matter
jurisdiction is the plaintiff’s allegation that his claim arises
under federal law. To be sure, this Court has federal question
jurisdiction over claims that arise under the U.S. Constitution,
laws, or treaties of the United States.
28 U.S.C. § 1331.
is no single definition encapsulating the concept of this Court’s
“arising under” jurisdiction.
Merrell Dow Pharmaceuticals Inc. v.
Sandifer suggests that the case be transferred to the appropriate
court if it is determined that the Court lacks jurisdiction.
Thompson, 478 U.S. 804, 808 (1986).
Most frequently, a claim
“arises under” federal law when federal law creates the cause of
Id. (citation omitted). Less frequently and more limited
in scope, a claim may arise under federal law when state law
creates the cause of action but substantial federal issues are
Grable & Sons Metal Prods., Inc. v. Darue Eng’g &
federalism concerns, there is no bright line test to apply to
determine whether a federal district court has federal question
jurisdiction over federal issues embedded in state law claims).
Prevention Act, 18 U.S.C. § 249, serves as the basis of federal
The Act states:
(a) In general.—
(1) Offenses involving actual or perceived race,
color, religion, or national origin.—Whoever, whether or
not acting under color of law, willfully causes bodily
injury to any person or, through the use of fire, a
firearm, a dangerous weapon, or an explosive or
incendiary device, attempts to cause bodily injury to
any person, because of the actual or perceived race,
color, religion, or national origin of any person(A) shall be imprisoned not more than 10
years, fined in accordance with this title, or both....
As the text of the Act makes clear, § 249 is a criminal statute
penalizing certain hate crimes.
As such, it criminalizes offenses
penalties; it does not confer private remedies, nor does it confer
rights on a specific class of individuals.
Absent from § 249 is
any express or implicit indication that Congress created a private
right of action.
This defeats the plaintiff’s assertion that the
Act supplies the predicate for federal question jurisdiction over
his claims against Hopkins.
See Merrell Dow Pharmaceuticals Inc.
v. Thompson, 478 U.S. 804, 817 (1986); Touche Ross & Co. v.
Redington, 442 U.S. 560, 568 (1979)(“[T]he fact that a federal
automatically give rise to a private cause of action in favor of
(2002)(The question of whether Congress intended to create a
private right of action is “definitively answered in the negative
where a statute by its terms grants no private rights to any
The case literature reinforces this Court’s finding that no
private right of action is conferred by § 249.
provided for in the statute, alleged violations of federal criminal
statutes do not provide a private right of action. See D’Aquin v.
Landrieu, No. 16-3862, 2016 WL 7178511, at *3 (E.D. La. Dec. 9,
2016)(Vance, J.)(citations omitted); see also Ali v. Shabazz, 8
F.3d 22 (5th Cir. 1993)(per curiam)(“In order for a private right
of action to exist under a criminal statute, there must be a
‘statutory basis for inferring that a civil cause of action of
some sort lay in favor of someone.’”)(citation omitted).
§ 249 does not contain any language indicating that it supplies a
private right of action, this Court agrees with other courts that
have held that Section 249 does not provide for any private right
See, e.g., Logan v. Black Lives Matter Organization,
recommendation adopted by, 2017 WL 1955414 (D.S.C. May 11, 2017);
D’Aquin v. New Orleans Mission, No. 16-12852, 2017 WL 3382455, at
*3 (E.D. La. Aug. 7, 2017); D’Aquin v. Landrieu, No. 16-3862, 2016
WL 7178511, at *3 (E.D. La. Dec. 9, 2016); D’Aquin v. Starwood
5254735, at *2 (E.D. La. Sept. 8, 2015); Chicago Title & Land Trust
Co. v. Rabin, No. 11-425, 2012 WL 266387, at *4 (N.D. Ill. Jan.
30, 2012); Lee v. Lewis, No. 10-55, 2010 WL 5125327, at *2 (E.D.
N.C. Oct. 28, 2010).
Section 249 is the only asserted basis of federal question
jurisdiction, but as a remedy it offers only criminal prosecution
at the United States’s discretion, not a private right of action
Accordingly, because this Court lacks subject matter
jurisdiction over state law claims between non-diverse parties,
plaintiff’s claims are hereby dismissed without prejudice.
New Orleans, Louisiana, January __, 2018
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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