HANER v. HOMMINGA

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ANTONIO AUSTIN HANER, JR,
Plaintiff,
vs. 	Case No.: 3:25cv2394/TKW/ZCB
ANNA MARIE HOMMINGA,
Defendant.
/
REPORT AND RECOMMENDATION
Plaintiff, proceeding 	pro se, commenced this action by filing a
complaint. 	(Doc. 1). 	On February 18, 2026, the Court issued an order
requiring Plaintiff to show cause, within fourteen days, as to why his case
should not be dismissed for lack of jurisdiction. (Doc. 11). That deadline
has passed, and Plaintiff has not provided sufficient cause to avoid
dismissal. (Doc. 12). Accordingly, the matter should be dismissed.
“Federal courts . . . are courts of limited jurisdiction.” 	Wu v. Liu,
131 F.4th 1295, 1298 (11th Cir. 2025) (cleaned up). 	If a federal court
“determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Federal subject
matter jurisdiction is based upon either federal question or diversity
jurisdiction, or jurisdiction under a specific statutory grant. 	See 28
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U.S.C. §§ 1331, 1332; Wilson v. Hearos, LLC, 128 F.4th 1254, 1260 (11th
Cir. 2025).
Federal question jurisdiction exists when an action arises under
federal law. 	28 U.S.C. § 1331. 	Actions arise under federal law “when a
federal question is presented on the face of the plaintiff’s properly
pleaded complaint.” 	Schleider v. GVDB Operations, LLC, 121 F.4th 149,
155-56 (11th Cir. 2024). This “well-pleaded complaint rule means that a
federal question is ‘presented’ when the complaint—on its face—invokes
federal law as the basis for relief.” 	Id. 	Claims based on state law
generally do not confer federal question jurisdiction. See Dunlap v. G&L
Holding Grp., Inc., 381 F.3d 1285, 1290 (11th Cir. 2004).
A 	second 	way 	to 	invoke 	federal 	subject 	matter 	jurisdiction 	is
through diversity jurisdiction. 	Diversity jurisdiction exists when the
parties are residents of different states and the amount in controversy
exceeds $75,000. 	28 U.S.C. § 1332(a). 	“[T]he plaintiff’s amount-in-
controversy allegation is accepted if made in good faith.” 	Dart Cherokee
Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014). 	“Diversity
jurisdiction requires complete diversity; every plaintiff must be diverse
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from every defendant.” Hensley v. Hartford Cas. Ins. Co., 113 F.4th 1327,
1332 (11th Cir. 2024).
The burden to establish federal subject matter jurisdiction rests on
the party asserting it. Lowery v. Alabama Power Co., 483 F.3d 1184, 1207
(11th Cir. 2007). 	Before dismissing a case for lack of subject matter
jurisdiction, the court should provide the plaintiff with notice and an
opportunity to respond. 	Surtain v. Hamlin Terrace Found., 789 F.3d
1239, 1248 (11th Cir. 2015).
In his complaint, Plaintiff alleges that Defendant is an employee of
the Florida Department of Corrections. And Plaintiff purports to bring a
civil rights claim under 42 U.S.C. § 1983 for malicious prosecution in
violation the Fourth and Fourteenth Amendments. 	(Doc. 1). 	While
Plaintiff included some factual allegations in his complaint (such as dates
of prosecutions), he also incorporated by reference “the factual record”
contained in other, previously filed federal cases. 	(Id. at 3). 	Upon a
review of the cited cases, it appears that Defendant is not subject to
liability under 42 U.S.C. § 1983.
Plaintiff’s 	dispute 	with 	Defendant 	arose 	out 	of 	their 	personal
relationship with each other—it did not arise from Defendant’s capacity
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as an employee of the Florida Department of Corrections. Indeed, in Case
No. 3:25cv629/HTC/TKW (a case Plaintiff incorporated by reference),
Plaintiff alleged that he and Defendant had a relationship in Arizona
before Plaintiff moved to Florida. 	After Plaintiff moved to Florida,
Defendant 	moved 	to 	Florida 	to 	reestablish 	contact 	with 	Plaintiff.
Plaintiff and Defendant then got into an altercation that led to Defendant
making a “false report to police which resulted in [Plaintiff’s] arrest.”
(Id., Doc. 5 at 2). 	Plaintiff allegedly made a deal with prosecutors
whereby the charges were dropped after Plaintiff paid court costs and
attended anger management sessions. (Id.).1
Defendant is not subject to liability under § 1983 because she was
acting as a private citizen—not a state actor when engaged in the alleged
1 The Court further characterized Plaintiff’s previous claims against
Defendant as “frivolous.” 	The Court stated: “[W]hile the complaint
contains allegations about events in Florida, those claims are frivolous.
[Plaintiff] cannot pursue a constitutional claim against [Defendant] for
falsely reporting a crime to Florida law enforcement because she did not
act under color of state law when she did so. . . . While [Plaintiff] alleges
[Defendant] is employed as a state correctional officer, her conduct
stemmed 	from 	her 	personal 	relationship 	with 	[Plaintiff]; 	nothing
indicates she acted in her capacity as a state correctional officer when
she made the allegedly false report. . . . [Plaintiff’s] constitutional claims
against [Defendant], therefore, are frivolous.” Case No. 3:25cv629, Doc. 5
at 7-8 (citations omitted).
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conduct. 	See Myers v. Bowman, 713 F.3d 1319, 1329 (11th Cir. 2013)
(holding county judge was acting as a private citizen when he reported
the theft of a dog which caused plaintiff’s arrest and thus, not liable
under § 1983).2 	Although Defendant is employed as a state correctional
officer, her conduct giving rise to Plaintiff’s complaint stemmed from the
personal relationship between Plaintiff and Defendant. 	Nothing in
Plaintiff’s 	complaint 	indicates 	Defendant 	was 	acting 	in 	her 	official
capacity 	as 	a 	state 	correctional 	officer 	when 	she 	“initiated” 	the
prosecutions described in Plaintiff’s complaint. Id. (“Not all acts by state
employees are acts under color of law and acts of officers in the ambit of
their personal pursuits are not done under color of law.”) (cleaned up).
Because 	Defendant 	is 	not 	subject 	to 	liability 	under 	§ 	1983,
Plaintiff’s reference to § 1983 in his complaint is insufficient to confer
federal subject matter jurisdiction.3 	See O’Neal v. Allstate Indem. Ins.
2 There are some situations where private individuals can be subject to §
1983 liability. See Charles v. Johnson, 18 F.4th 686, 694 (11th Cir. 2021).
None of those exceptions are relevant to Plaintiff’s allegations.
3 	See also Terry v. Desautels, No. 2:24-CV-727-RAH-JTA, 2025 WL
2089310, at *9 (M.D. Ala. July 24, 2025) (dismissing without prejudice §
1983 claim for lack of subject matter jurisdiction where the complaint
“contains no colorable allegation Defendants acted under color of state
law or violated a constitutional right or federal statute, nor does it
contain 	any 	facts 	from 	which 	such 	allegations 	could 	be 	generously
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Co. Inc., No. 20-14712, 2021 WL 4852222, at **2-3 (11th Cir. Oct. 19,
2021) (affirming dismissal for lack of subject matter jurisdiction where
the district court held that the plaintiff “failed to allege a substantial,
nonfrivolous 	federal 	claim 	that 	would 	implicate 	the 	court’s 	federal
question jurisdiction”).
Aside from Plaintiff’s reference to § 1983, he provides no other
allegations sufficient to invoke this Court’s federal question jurisdiction.
Moreover, although Plaintiff does not invoke diversity jurisdiction under
§ 1332, it is apparent that the complaint provides no basis for it. Plaintiff
and Defendant are residents of Florida. (Docs. 1 at 2, 5). Therefore, there
is no complete diversity between the parties as required for diversity
jurisdiction.
Before 	recommending 	dismissal 	for 	lack 	of 	subject 	matter
jurisdiction, the Court provided Plaintiff with notice and an opportunity
construed or inferred”), adopted, 2025 WL 2375145 (M.D. Ala. Aug. 14,
2025); Moorer v. Trump, No. 3:21CV872-MCR-HTC, 2021 WL 4138702,
at *2 (N.D. Fla. July 16, 2021) (“The general rule governing pleading
federal 	jurisdiction 	requires 	more 	than 	a 	simple 	allegation 	that
jurisdiction exists or citation of a federal statute. Rather, it is required
that the complaint clearly set out the basic facts necessary to support the
conclusion that there is federal jurisdiction.”), adopted, 2021 WL 4134669
(N.D. Fla. Sept. 9, 2021).
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to respond by way of the show cause order. Plaintiff responded, arguing
that because of Defendant’s occupation as a Florida Department of
Corrections officer, she had more influence over law enforcement and
prosecutors than a private citizen. (Doc. 12 at 2-3, 4). His allegations are
insufficient to show that Defendant acted under color of state law. See
Myers, 713 F.3d at 1329.
For the reasons above, it is respectfully RECOMMENDED that:
1. 	This case be DISMISSED without prejudice for lack of
subject matter jurisdiction.
2. 	All pending motions be DENIED as moot.
3. 	The Clerk of Court be directed to enter judgment accordingly
and close this case.
At Pensacola, Florida, this 2nd day of March 2026.
/s/
Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice To The Parties
Objections to these proposed findings and recommendations must
be 	filed 	within 	fourteen 	days 	of 	the 	date 	of 	the 	Report 	and
Recommendation. 	Any 	different 	deadline 	that 	may 	appear 	on 	the
electronic 	docket 	is 	for 	the 	court’s 	internal 	use 	only 	and 	does 	not
control. 	An objecting party must serve a copy of the objections on all
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other parties. 	A party who fails to object to the magistrate judge’s
findings or recommendations contained in a report and recommendation
waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions. 	See 11th Cir. Rule 3-1; 28
U.S.C. § 636.
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