2:24-cv-00343•Varner v. Selma Police Department et al
Testo completo
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 Case 2:24-cv-00343-TFM-MU Doc# 17 Filed 11/20/24 Page 1 of 8 PageID# <pageID>
2 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.”). Case 2:24-cv-00343-TFM-MU Doc# 17 Filed 11/20/24 Page 2 of 8 PageID# <pageID>
3 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 Case 2:24-cv-00343-TFM-MU Doc# 17 Filed 11/20/24 Page 3 of 8 PageID# <pageID>
4 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 Case 2:24-cv-00343-TFM-MU Doc# 17 Filed 11/20/24 Page 4 of 8 PageID# <pageID>
5 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, Case 2:24-cv-00343-TFM-MU Doc# 17 Filed 11/20/24 Page 5 of 8 PageID# <pageID>
6 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). Case 2:24-cv-00343-TFM-MU Doc# 17 Filed 11/20/24 Page 6 of 8 PageID# <pageID>
7 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 Case 2:24-cv-00343-TFM-MU Doc# 17 Filed 11/20/24 Page 7 of 8 PageID# <pageID>
8 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 Case 2:24-cv-00343-TFM-MU Doc# 17 Filed 11/20/24 Page 8 of 8 PageID# <pageID>
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