Sellers v. Leshan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN SELLERS, 	)
Plaintiff, 	)
)
v. 	) 	CIVIL ACTION NO. 1:24-00084-JB-N
)
LESLIE LESHAN and 	)
JPL PASADENA, 	)
Defendants. 	)
REPORT AND RECOMMENDATION
The Plaintiff, JOHN SELLERS, initiated this civil action without counsel (pro
se) by filing a complaint with the Court on March 21, 2024. See (Doc# 1); Fed. R. Civ.
P. 3. On September 26, 2024, the Court entered two orders that, collectively, granted
Sellers leave to proceed without prepayment of the filing and administrative fees for
this action under 28 U.S.C. § 1915 (i.e., in forma pauperis), directed the Clerk of Court
to withhold service, and ordered Sellers to file an amended complaint by October 24,
2024. (See Docs# 3, 4). The Court mailed Sellers copies of those two orders at the
mailing address provided in his complaint: 279 N. Washington Ave., Mobile, AL
36603. 	Those 	copies 	were 	returned 	to 	the 	Court 	as 	“Not 	Deliverable 	as
Addressed/Unable to Forward.” (Doc# 5). To date, the Court has not received anything
else from Sellers since he initiated this action, nor has he contacted the Clerk of Court
to update his mailing address.1
1 Sellers provided a contact email address on his complaint, but it is not completely
legible as written. (See Doc# 1, PageID.1). Sellers also provided a contact telephone
number (see id.), but it is for an out-of-state relative who claimed to not know how to
get in contact with Sellers.
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I. 	Analysis
a. Failure to State a Claim Upon Which Relief May Be Granted
Because Sellers was granted leave to proceed in forma pauperis, his complaint
is subject to § 1915(e)(2), which states that “the court shall dismiss the case at any
time if the court determines that—(A) the allegation of poverty is untrue; or (B) the
action …—(i) is frivolous or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief.”
Because the “language of section 1915(e)(2)(B)(ii) tracks the language of
Federal Rule of Civil Procedure 12(b)(6),” the same standards are applied for both.
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). In general, “[t]he scope of
the review must be limited to the four corners of the complaint.” St. George v. Pinellas
Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). The court must “accept the allegations in
the complaint as true and construe them in the light most favorable to the plaintiff.”
Duty Free Ams., Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1262 (11th Cir.
2015). Courts “hold the allegations of a pro se complaint to less stringent standards
than formal pleadings drafted by lawyers[,]” and “[a]ccordingly … construe [pro se]
pleadings liberally. Yet even in the case of pro se litigants this leniency does not give
a court license to serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760
F.3d 1165, 1168–69 (11th Cir. 2014) (citations and quotation omitted).
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“To survive a motion to dismiss [for failure to state a claim], a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim
for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
In other words, the complaint must contain “factual content that allows
the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
Hi-Tech Pharm., Inc. v. HBS Int'l Corp., 910 F.3d 1186, 1196 (11th Cir. 2018).
As the United States Supreme Court has explained, “[u]nder Federal Rule of
Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’ … [T]he pleading standard Rule
8 announces does not require detailed factual allegations, but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it tenders naked assertions devoid
of further factual enhancement.” Iqbal, 556 U.S. at 677-78 (citations and some
quotations omitted). See also Duty Free, 797 F.3d at 1262 (Courts “ ‘afford no
presumption of truth to legal conclusions and recitations of the basic elements of a
cause of action.’ ” (quoting Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013)
(per curiam))).
“The plausibility standard is not akin to a probability requirement, but it asks
for more than a sheer possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of entitlement to relief.” Iqbal,
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556 U.S. at 678 (citation and quotation marks omitted). Put another way, “where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show [n]’—'that the pleader is
entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[T]o determine what
the plaintiff must plausibly allege at the outset of a lawsuit, [courts] usually ask what
the plaintiff must prove in the trial at its end.” Comcast Corp. v. Nat'l Ass'n of African
Am.-Owned Media, 589 U.S. 327, 332, 140 S. Ct. 1009, 206 L. Ed. 2d 356 (2020).
Moreover, “ ‘the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.’ ” Am. Dental Ass'n v.
Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S at 678).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The Supreme Court has
“suggested that courts considering motions to dismiss adopt a ‘two-pronged approach’
in applying these principles: 1) eliminate any allegations in the complaint that are
merely legal conclusions; and 2) where there are well-pleaded factual allegations,
‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’ ” Id. (quoting Iqbal, 556 U.S. at 679). “Importantly, … courts
may 	infer 	from 	the 	factual 	allegations 	in 	the 	complaint 	‘obvious 	alternative
explanation[s],’ which suggest lawful conduct rather than the unlawful conduct the
plaintiff would ask the court to infer.” Id. (quoting Iqbal, 556 U.S. at 679 (quoting
Twombly, 550 U.S. at 567)).
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Sellers appears to name two defendants to this lawsuit in his complaint: JPL
Pasadena, which the undersigned construes as referring to NASA’s Jet Propulsion
Laboratory in Pasadena, California (https://www.jpl.nasa.gov/); and Leslie Leshan, in
his/her capacity as “Director” of JPL Pasadena. In the section of the form complaint
Sellers used labeled “Statement of Claim,” Sellers alleges, in full, as follows:
All human rights violations under United States law. Any rights
therefore listed under human rights laws that govern the United States
and icluding [sic] the United Nations human rights laws.
Abuse by government officials endlessly to bloody point of no return.
(Doc. 1, PageID.4). In a prior section regarding subject-matter jurisdiction, Sellers
also alleges that he is asserting claims under “United States Constitution – ALL.”
(Id., PageID.3). As damages, Sellers demands: “ALL claim + Damages – ALL.” (Id.,
PageID.4). Sellers’s complaint fails to satisfy Rule 8(a)(2), because it is utterly bereft
of any well-pleaded factual allegations plausibly suggesting a violation of any
constitutional right or human rights law. Cf. Iqbal, 556 U.S. at 679 (“[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not shown—that the pleader is
entitled to relief.” (alterations and quotations omitted)). Thus, it is due to be
dismissed under § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be
granted.2
2 The general rule in this circuit for pro se plaintiffs is that “[w]here a more carefully
drafted complaint might state a claim, a plaintiff must be given at least one chance
to amend the complaint before the district court dismisses the action with prejudice.”
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b. Failure to Prosecute
A federal district court is authorized to dismiss a case sua sponte for failure to
prosecute under both Federal Rule of Civil Procedure 41(b) and its inherent power to
manage its docket. Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337
(11th Cir. 2005). See also Link v. Wabash R. Co., 370 U.S. 626, 630, 82 S. Ct. 1386, 8
L. Ed. 2d 734 (1962) (interpreting Rule 41(b) not to restrict the court’s inherent
authority to dismiss sua sponte an action for lack of prosecution); S.D. Ala. CivLR
41(c) (“Whenever it appears that the Plaintiff is not diligently prosecuting the action,
the Court upon notice may dismiss the action for failure to prosecute, in accordance
with applicable law.”). As was previously noted, see n.2, supra, given that Sellers has
not updated his address, checked his case’s status, or otherwise contacted the Court
in the 10 months since he filed his complaint, it is clear that Sellers has not been
diligently 	prosecuting 	this 	action, 	and 	indeed 	appears 	to 	have 	abandoned 	its
prosecution. Accordingly, this action is also due to be dismissed without prejudice for
Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam), overruled in part by
Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 & n.1 (11th Cir. 2002)
(en banc) (overruling Bank’s one-chance-to-amend rule as to counseled parties)). Only
“where the plaintiff has indicated that he does not wish to amend his complaint,” or
“if a more carefully drafted complaint could not state a claim[,]” may a district court
dismiss a pro se complaint with prejudice without granting leave to amend. Id. The
Court having not heard anything from Sellers in the 10 months since he initiated this
action, even to update his mailing address, the undersigned construes this silence as
Sellers’s abandonment of this action, and thus finds that he would not wish to further
amend his complaint. Nevertheless, the undersigned will recommend dismissal of the
complaint without prejudice.
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failure to prosecute under both Rule 41(b) and the Court’s inherent power to manage
its docket.3
II. 	Conclusion
In accordance with the foregoing analysis, the undersigned RECOMMENDS
that this action be DISMISSED without prejudice (1) under § 1915(e)(2)(B)(ii) for
failure to state a claim on which relief may be granted, and (2) for failure to prosecute
this action under both Rule 41(b) and the Court’s inherent authority.
3 Where dismissal of a complaint without prejudice has the effect of precluding a
plaintiff from refiling his claim due to the running of the statute of limitations, the
dismissal is tantamount to a dismissal with prejudice. Justice v. United States, 6 F.3d
1474, 1482 n.15 (11th Cir. 1993). Sellers’s complaint can best be construed as, at the
very least, asserting claims against a federal agency and its director under Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.
Ct. 1999, 29 L. Ed. 2d 619 (1971), for violations of his federal rights, which are subject
to a 2-year statute of limitation in Alabama. See Powell v. Thomas, 643 F.3d 1300,
1303 (11th Cir. 2011) (per curiam) (“All constitutional claims brought under [42
U.S.C.] § 1983 are tort actions, subject to the statute of limitations governing personal
injury actions in the state where the § 1983 action has been brought. In Alabama, …
that limitations period is two years.” (citation and quotation omitted)); Kelly v. Serna,
87 F.3d 1235, 1238 (11th Cir. 1996) (holding that “the same statute of limitations
applicable to actions under 42 U.S.C. § 1983 should apply to Bivens actions”).
However, the complaint’s sparse allegations give no indication of when any such
cause of action could have accrued, and less than a year has passed since the
complaint was filed. Thus, it is not obvious from the current record that a dismissal
without 	prejudice 	at 	this 	time 	is 	tantamount 	to 	dismissal 	with 	prejudice.
Nevertheless, even if the applicable statute of limitations would preclude some of
Sellers’s claims if he refiled his complaint, the undersigned finds that dismissal for
failure to prosecute is still warranted because, as explained above, Sellers appears to
have abandoned prosecution of this action. Without Sellers’s active participation in
this case, and without any current means by the Court (or potential opposing parties)
to contact him, this action cannot proceed. Thus, sanctions less than dismissal are
inadequate. See Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006) (“Dismissal
with prejudice [for failure to prosecute] is not proper unless the district court finds a
clear record of delay or willful conduct and that lesser sanctions are inadequate to
correct such conduct.” quotation omitted)).
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NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law.4 Any party who objects to this recommendation or anything
in it must, within 14 days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-
1, “[a] party failing to object to a magistrate judge’s findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order
based on unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an
objection must identify the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the place in the Magistrate Judge’s
report and recommendation where the disputed determination is found. An objection
that merely incorporates by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this the 27th day of January 2025.
/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE
4 Mailing Sellers a copy of this document at his last known address, even if he no
longer resides there, constitutes service on him. See Fed. R. Civ. P. 5(b)(2)(C).
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