Sandifer v. Hopkins

Filing 12

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.

CIVIL ACTION

v.

NO. 17-6580

FRANK HOPKINS

SECTION "F"

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.
Background
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

All allegedly

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.
1
1

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

for

daughter.

Sandifer’s

When

he

arrived

at

Brady’s

house,

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
officers.

Thinking Hopkins (a white male) was joking, Sandifer (a

black male) laughed.

But Hopkins was not joking.

Hopkins yelled

at Sandifer: “You can’t do what you want around here.
music down.”

Turn your

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
car.

Hopkins also returned to Sandifer’s car, still carrying a

stick, and yelled at Sandifer about the Dallas and Baton Rouge
police shootings.

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
2

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.

After

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
kill you!”

Sandifer yelled back, “It’s not that serious. What’s

your problem?”

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.
Sandifer

reported

the

incident

to

New

Orleans

Police

Department officers, who arrived on scene along with an ambulance,
which transported Sandifer to the Ochsner Baptist Hospital.

When

x-rays revealed that surgery was necessary to repair his broken
arm, Sandifer was admitted to the hospital.
underwent surgery.
Service

mail

The next day, he

Unable to work as a United States Postal

carrier

during

his

recovery,

Sandifer

was

not

accumulating the hours he needed to maintain insurance coverage.
3

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.
§ 249.

Hopkins now seeks to dismiss Sandifer’s complaint on the

ground that this Court lacks subject matter jurisdiction.

I.
A.
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."
v.

Guardina

Life

Ins.

(1994)(citations omitted).

Co.

of

Am.,

511

U.S.

Kokkonen
375,

377

If the Court lacks the statutory or

constitutional power to adjudicate a claim, the claim must be
dismissed for lack of subject matter jurisdiction.

Home Builders

Sandifer alleges that he attempted to proceed with his case in
New Orleans Municipal Court, but that his case was declined by the
city attorney.
4
2

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
jurisdiction.

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

burden,

prove

the

party

asserting

jurisdiction

“must

by

a

preponderance of the evidence that the court has jurisdiction based
on the complaint and evidence.”

King, 728 F.3d at 413.

The Court

may find a plausible set of facts to support subject matter
jurisdiction

by

considering

any

of

the

following:

“(1)

the

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.
1996).

5

B.
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."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he

pleading

'detailed

factual

standard

Rule

8

allegations,'

6

announces

but

it

does

demands

not
more

require
than

an

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
7

doubtful in fact).”
footnote omitted).

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
reasonable

inference

misconduct alleged.”

that

the

defendant

is

liable

for

the

Iqbal, 556 U.S. at 678.

II.
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
jurisdiction. 3

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.

There

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.
8
3

Thompson, 478 U.S. 804, 808 (1986).

Most frequently, a claim

“arises under” federal law when federal law creates the cause of
action.

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
implicated.
Mfg.,

545

Grable & Sons Metal Prods., Inc. v. Darue Eng’g &
U.S.

308,

312

(2005)(explaining

that,

in

light

of

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).
Here,

Sandifer

contends

that

the

federal

Hate

Crime

Prevention Act, 18 U.S.C. § 249, serves as the basis of federal
question jurisdiction.

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.
for

which

it

authorizes

As such, it criminalizes offenses

criminal
9

enforcement

and

criminal

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
statute

has

been

violated

and

some

person

harmed

does

not

automatically give rise to a private cause of action in favor of
that

person.”);

Gonzaga

Univ.

v.

Doe,

536

U.S.

273,

283-84

(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
identifiable class.”).
The case literature reinforces this Court’s finding that no
private right of action is conferred by § 249.

Unless explicitly

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
10

‘statutory basis for inferring that a civil cause of action of
some sort lay in favor of someone.’”)(citation omitted).

Because

§ 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
of action.
No.

See, e.g., Logan v. Black Lives Matter Organization,

16-2599,

2016

WL

8929076,

at

*2

(D.S.C.),

report

and

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
Hotels

and

Worldwide

Properties,

Inc.,

No.

15-1963,

2015

WL

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
to Sandifer.

Accordingly, because this Court lacks subject matter

jurisdiction over state law claims between non-diverse parties,

11

the

defendant’s

motion

to

dismiss

is

hereby

GRANTED.

plaintiff’s claims are hereby dismissed without prejudice.

New Orleans, Louisiana, January __, 2018
8

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

12

The