Varner v. Selma Police Department et al

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
KHARI VARNER, )
)
Plaintiff, )
)
vs. ) CIV. A. NO. 2:24-00343-TFM-MU
)
SELMA POLICE DEPARTMENT, et al., )
)
Defendants. )
REPORT & RECOMMENDATION
Plaintiff Khari Varner, a pretrial detainee at Perry County PREP Center, filed a
complaint against Defendants Dallas County District Judge Vernetta Perkins, the
Selma Police Department, the Dallas County Sheriff’s Office, and DHR (the Alabama
Department of Human Resources) seemingly challenging custody of his minor
children and, specifically, the correctness of Dallas County District Judge Perkins’s
decision dismissing a child custody case he filed in Alabama state court for lack of
jurisdiction. (Doc.1). This action was referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and S.D. Ala. GenLR 72(a)(2)(R). (Doc. 4). Upon
review of the complaint and for the reasons explained below, the undersigned finds
that the Court lacks jurisdiction over the claims asserted and the complaint is due to
be DISMISSED without prejudice.
I. Subject Matter Jurisdiction
“It is ... axiomatic that the inferior federal courts[,]” such as this district court, “are
courts of limited jurisdiction.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409
(11th Cir. 1999) “They are ‘empowered to hear only those cases within the judicial
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power of the United States as defined by Article III of the Constitution,’ and which have
been entrusted to them by a jurisdictional grant authorized by Congress.” Id. (quoting
Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, “it is well settled
that a federal court is obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.” Id. at 410. “[A] court should inquire into whether it has
subject matter jurisdiction at the earliest possible stage in the proceedings.” Id. See also
Arbaugh v. Y&H Corp., 546 U.S. 500, 514, (2006) (“[C]ourts, including this Court, have
an independent obligation to determine whether subject-matter jurisdiction exists, even
in the absence of a challenge from any party.”).
As the Eleventh Circuit has explained:
When a plaintiff files suit in federal court, [the plaintiff] must
allege facts that, if true, show federal subject matter
jurisdiction over [the] case exists. Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994) ... Without such allegations,
district courts are constitutionally obligated to dismiss the
action altogether if the plaintiff does not cure the deficiency.
Stanley v. C.I.A., 639 F.2d 1146, 1159 (5th Cir. Unit B Mar.
1981); see also DiMaio v. Democratic Nat'l Comm., 520 F.3d
1299, 1303 (11th Cir. 2008) (“Where dismissal can be based
on lack of subject matter jurisdiction and failure to state a
claim, the court should dismiss on only the jurisdictional
grounds.” (internal quotation marks omitted)). That is, if a
complaint's factual allegations do not assure the court it
has subject matter jurisdiction, then the court is without
power to do anything in the case. See Goodman ex rel.
Goodman v. Sipos, 259 F.3d 1327, 1331, n.6 (11th Cir. 2001)
(“‘[A district] court must dismiss a case without ever reaching
the merits if it concludes that it has no jurisdiction.’” (quoting
Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.
1993))); see also Belleri v. United States, 712 F.3d 543, 547
(11th Cir. 2013) (“We may not consider the merits of [a]
complaint unless and until we are assured of our subject
matter jurisdiction.”).
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Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013) (emphasis added)
(footnote omitted). See also Fed. R. Civ. P. 8(a)(1) (a complaint must contain “a short
and plain statement of the grounds for the court's jurisdiction ...”); Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”). “In a given case, a federal district court must have at
least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific
statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3)
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron Trading Corp.,
128 F.3d 1466, 1469 (11th Cir. 1997).
II. Analysis of Plaintiff’s Claims
Plaintiff’s complaint, which claims that jurisdiction is based on both federal
question and diversity of citizenship, names as defendants Dallas County District Judge
Vernetta Perkins, the Selma Police Department, the Dallas County Sheriff’s Office, and
DHR (the Alabama Department of Human Resources). (Doc. 1 at 2). In his complaint,
Plaintiff challenges the correctness of Dallas County District Judge Perkins’s March 12,
2024 decision dismissing a child custody case he filed in Alabama state court for lack of
jurisdiction. (Id. at 4). In support of this claim, Varner provides a summary of incidents
occurring in Nevada that led to his children allegedly being “taken” and/or “kidnapped”
by family members through a scheme involving Nevada’s Department of Family
Services. (Id. at 6-13). He further explains the actions he has taken to try and get his
children back to Alabama. (Id). Plaintiff also claims that the Selma Police Department,
the Dallas County Sheriff’s Office, and DHR are liable to him for refusing to protect and
look out for his children by refusing to report his children as missing or kidnapped when
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they were allegedly improperly removed by child welfare workers in Nevada. (Id. at 7,
13). For relief, he seeks one million dollars, enforcement of the Child Abduction
Prevention Act and the Unified Custody Act, and to have kidnapping charges brought
against his mother-in-law and certain DFS workers for kidnapping and conspiracy to
kidnap. (Id. at 4).
A. Diversity jurisdiction
Under § 1332(a), a district court has subject matter jurisdiction “where the matter
in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between citizens of different States.” 28 U.S.C. § 1332(a)(1). A complaint's
“allegations, when federal jurisdiction is invoked based upon diversity, must include the
citizenship of each party, so that the court is satisfied that no plaintiff is a citizen of the
same state as any defendant.” Travaglio, 735 F.3d at 1268. In this action, Plaintiff
identifies himself as a citizen of the State of Alabama and names as defendants Dallas
County District Judge Vernetta Perkins, the Selma Police Department, the Dallas
County Sheriff’s Office, and DHR, all of which are Alabama entities (Doc. 1 at 2).
“Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from
every defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.
1998). Here, while Varner seeks more than $75,000 in damages exclusive of interests
and costs, all parties are citizens of the State of Alabama. Accordingly, Varner has
failed to establish diversity jurisdiction. See Travaglio, 735 F.3d at 1268.
The Court notes that, while “[d]efective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts[,]” 28 U.S.C. § 1653, and “leave to
amend should be freely granted when necessary to cure a failure to allege jurisdiction
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properly,” Majd-Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 n.1 (11th Cir.
1984), amendment to create diversity jurisdiction here would be futile.
B. Federal Question Jurisdiction
It is well-settled that Plaintiffs must “affirmatively allege facts demonstrating the
existence of jurisdiction.” Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994); see
also Cornelius v. U.S. Bank Nat. Ass'n, 452 F. App'x 863, 865 (11th Cir. 2011) (per
curiam) (unpublished) (affirming dismissal of pro se complaint for failure to allege a
sufficient basis for subject matter jurisdiction). While courts are instructed to “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, 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). Thus, this Court cannot create subject matter jurisdiction when facts
supporting a finding of jurisdiction have not been alleged. In his complaint, Plaintiff
states that his basis for federal question jurisdiction is: “Alabama law says custody
jurisdiction lies where custody started.” (Doc. 1 at 3). Obviously, this statement does not
support a finding of federal question jurisdiction as it claims a violation of state law.
However, reading his complaint broadly, Plaintiff seemingly attempts to establish
federal question jurisdiction in this Court through citations to the Uniform Child
Abduction Prevention Act (UCAPA), codified at § 30-3C-1 et seq., Ala. Code 1975, and
the Unified Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at § 30-
3B-101 et seq., Ala. Code 1975. These are jurisdictional acts adopted by states,
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including Alabama, to establish subject-matter jurisdiction over child custody
proceedings in state court. M.A.B. v. D.S., 364 So. 3d 994, 996 (Ala. Civ. App. 2022)
(providing the Alabama Supreme Court’s reasons for adopting the UCCJEA, namely, to
avoid jurisdictional competition and conflict with courts of other states in matters of child
custody). In other words, state courts utilize the acts to promote cooperation among the
states and help determine state jurisdiction in child custody cases. These acts do not,
however, confer federal question jurisdiction. See Cahill v. Kendall, 202 F.Supp.2d
1322, 1329 (S.D. Ala. 2002) (no federal question jurisdiction under UCCJEA); see also
Mensah v. St. Joseph County Family Indep. Agency, 187 F.3d 636 (table), No. 98–
1726, 1999 WL 623733, at *2 (6th Cir. Aug.11, 1999) (unpublished) (because the
UCCJEA is only a state procedural statute, it does not confer federal question
jurisdiction); Becker v. California, 17 F.3d 393 (table), No. 92–16676, 1994 WL 41073,
at *1 (9th Cir. Feb.10, 1994) (unpublished) (no federal cause of action under UCCJEA).
Instead, if the plaintiff feels aggrieved by the state court orders, his remedy is to appeal
through the state courts. Cahill v. Kendall, 202 F. Supp. 2d 1322, 1328 (S.D. Ala. 2002).
Additionally, to the extent Varner attempts to proceed under the Parental
Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A, to have this Court
intervene in his state custody issues, his claim also fails. Simply put, there is no
provision of § 1738A that may serve as a basis for federal jurisdiction because § 1738A
does not confer a federal cause of action. Thompson v. Thompson, 484 U.S. 174, 186-
87 (1988) (holding the PKPA does not provide an implied cause of action in federal
court).
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The Court again notes that while “[d]efective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts[,]” 28 U.S.C. § 1653, and “leave to
amend should be freely granted when necessary to cure a failure to allege jurisdiction
properly,” Majd-Pour., 724 F.2d at 903 n.1, amendment to create federal jurisdiction
here is futile. Because it is apparent that no federal subject matter jurisdiction exists in
this case, this action is due to be dismissed without prejudice for Varner to file his claim
in state court.
III. Conclusion
For the foregoing reasons, it is RECOMMENDED that this action be DISMISSED
without prejudice under Federal Rule of Civil Procedure 12(h)(3) for lack of subject-
matter jurisdiction.
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. Any party who objects to this recommendation or anything in it
must, within fourteen (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
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necessary in the interests of justice.” 11th Cir. R. 3-1. 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 20th day of November, 2024.
/s/ P. BRADLEY MURRAY ____________
UNITED STATES MAGISTRATE JUDGE
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