Opinion
CIVIL ACTION NO. 00-0326-P-L.
June 5, 2000,
JUDGMENT
It is ORDERED, ADJUDGED, and DECREED that this action brought by pro se plaintiff, E.S. Welch, Sr., be and is hereby DISMISSED without prejudice for lack of subject matterjurisdiction. Plaintiff to bear costs.
DONE this 5th day of June, 2000.
ORDER DISMISSING THIS ACTION FOR LACK OF SUBJECT MATTER JURISDICTION
Currently pending before this court is a self-styled action brought by pro se plaintiff Elmore S. Welch, Sr., of 141 1/2 Carver Avenue, Atmore, Alabama 36502. After careful review and consideration of all matter presented, this court finds that plaintiff's action is due to be dismissed for lack of subject matter jurisdiction.
Plaintiff is no stranger to this court. See Welch v. Judge Bradley E. Byrne. et al., C.A. 99-0013-P-S (S.D. Ala. (May 17, 1999)) (dismissed for lack of subject matter jurisdiction); Welch v. Holley, C.A. 84-0233 (S.D. Ala. (May 31, 1986)); Welch v. Garretts, C.A. 85-0907-H-M (S.D. Ala. (Aug. 5, 1985)) (dismissed pursuant to 28 U.S.C. § 1915 (d));Welch v. Daniel Int'l Corp., C.A. 86-0158-H-C (S.D. Ala. (Aug. 20, 1986)) (dismissed pursuant to § 1915(d)); Welch v. U.S. Purchasing Ex., C.A. 87-1072-BH-C (S.D. Ala. (Nov. 30, 1987)) (dismissed pursuant to § 1915(d)); Welch v. State Farm Mutual, 88-0739-AH-M (S.D. Ala. (Dec. 16, 1988)) (dismissed for failure to prosecute); Welch v. Associated Recovery, C.A. 90-0783-RV-S (S.D. Ala. (Apr. 23, 1991)) (dismissed pursuant to § 1915(d)); Welch v. Mary Hooks or Mary McNeil or Mary Ferell, C.A. 92-0207-CB-M (S.D. Ala. (May 22, 1992)) (dismissed pursuant to § 19 15(d) for lack of subject matter jurisdiction); Welch v. State Farm Ins. Co. St. Paul Marine Fire, C.A. 95 0009-P-S (S.D. Ala. (Aug.7, 1995)) (dismissed for lack of subject matter jurisdiction), appeal denied, 95-7007 (11th Cir. (Oct. 11, 1996));Welch v. Shalala, C.A. 95-0094-AH-M (S.D. Ala. (May 29, 1996)) (dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 4(m)); and Welch v. Maxwell, C.A. 96-0423-CB-C (S.D. Ala. (Jan. 9, 1997)) (dismissed for failure to prosecute).
Plaintiff initiated this action on April 6, 2000, in the federal district court for the Middle District of Alabama (C.A. 00-A-4 16-N). Plaintiff paid the requisite filing fee (receipt number 81404) (doc. 3, p. 3, item 1). By Order dated April 11, 2000, the action was transferred to this District (doc. 2).
The caption of this action indicates that plaintiff is bringing this litigation against one "Respondent," Cleo McCants, a resident of Atmore, Alabama, located in Escambia County. The complaint lacks clarity, however. The best the court is able to discern is that according to plaintiff, defendant "forged" his name and "sold [his] timber under theKnight tract." (doc. 1, p. 1, emphasis in original). Plaintiff seeks "$20,000.00 within 90 days" from defendant and if defendant fails to respond, plaintiff "shall demand and (sic) arrest warrant on all separate charges. Fifteen (15) counts, minimum of 5 years each." (doc. 1 p. 2). The complaint is dated April 3, 2000.
Attached to the complaint are numerous exhibits with various documents asserting civil and criminal charges against others and seeking millions of dollars as compensation. The others include Escambia County Circuit Court Judge Bradley E. Byrne, "the Escambia County Courthouse Judicial System of the 21st District," the Clerk of Court James K. Taylor, the Tax Collector Jim Hildreth, the law firm of Coale, Moore and Jordan, in Evergreen, Alabama, located in Escambia County and "a black man by the name of Melvin Hall(a typical tom, a prop, an imposter, a stool pigeon, a spy, an informer), a simple-minded pimp for a racial white skinned judge named Bradley B[yr]ne, who uses his office to cheat, swindle, take, rake and earthy possession in the (sic) of the Court." (doc. 1, p. 5-6) These are not named defendants in this action.
Plaintiff incorrectly identifies Judge Byrne as "Judge Bradley Bryne" (doc. 1, p. 24).
Plaintiff incorrectly refers to the Escambia County Tax Collector as Jim Hildreth (doc. 1, p. 6). Mr. Hildreth is the Escambia County Tax Assessor.
Plaintiff asserts that Mr. Hall is a resident of Pea Ridge, Alabama, located in Escambia County (doc. 1, p. 38).
Included with the exhibits submitted with plaintiff's complaint is a copy of a Motion For Temporary Restraining Order and Preliminary Injunction filed December 29, 1999 in the Circuit Court of Escambia County (Melvin Hall. Plaintiff v. Elmore S. Welch and Cleo McCants. Defendants, CV-99-421) (doc. 1, p. 17-lS). The Motion asserts that Melvin Hall, Elmore Welch, and "several unidentified heirs own interest" in a specified tract of land and that Mr. McCants "is cuffing and hauling away timber at the direction of [d]efendant Elmore Welch" (doc. 1, p. 17). The movant, Mr. Hall, asks that Elmore Welch and Mr. McCants be enjoined from cutting and removing timber. An order dated January. 4, 2000, issued by Judge Byrne, entitled Order Granting Preliminary Injunction, enjoins "Elmore S. Welch and Cleo McCants. . . from cutting any further timber on the. . . described property. . . That Cleo McCants shall market, to the best of his ability, the remaining timber which has already been cut and that the proceeds thereof be paid immediately to the Clerk of this Court. . ." (doc. 1, p. 23).
This court is under an initial duty to review plaintiff's complaint to determine whether the court has subject matter jurisdiction "at the earliest possible stage in the proceedings." Univ. of South Ala. v. American Tobacco, 168 F.3d 405, 410 (11th Cir. 1999). "Indeed, it is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking." Id.
It is axiomatic that federal courts "are courts of limited jurisdiction. . . "empowered to hear only those cases within the judicial 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. at 409 (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). As the United States Supreme Court held, long ago, in Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), "[w]ithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Univ. of South Alabama, 168 F.3d at 410.
Generally, federal subject matter jurisdiction is based either on federal question jurisdiction or on diversity pursuant to 28 U.S.C. § 133 1-32. Taylor, 30 F.3d at 1367. When jurisdiction is based on either of these, "the pleader must affirmatively allege facts demonstrating the existence of jurisdiction and include "a short and plain statement of the grounds upon which the court's jurisdiction depends.' Id. (quoting Fed.R.Civ.P. 8(a)); Kirkland v. Masonry Inc. v. Comm'r of Internal Revenue, 614 F.2d 532, 533 (5th Cir. 1980) (A statement of jurisdiction must affirmatively appear in the complaint because the federal court is a court of limited jurisdiction with there being no presumption in favor of the federal court's jurisdiction.). A pro se litigant "is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure." Moon v. Newsome, 863 F.2d 835, 837 (11th" Cir.), cer. denied, 493 U.S. 863 (1989); see also SD ALALR 83.9. With this standard in mind, the court considers plaintiff's complaint.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981 (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.
Plaintiff's complaint does not affirmatively state a basis for federal subject matter jurisdiction, nor does it contain "a short and plain statement of the grounds upon which the court's jurisdiction depends." Fed.R.Civ.P. 8(a); Taylor, 30 F.3d at 1367. Plaintiff names Mr. McCants, "a timber cutter," "scham artist and aider of criminal conspiracy," (doc. 1, p. 3), and others, insofar as the others referred to can be considered defendants in this action, alleging various misdeeds arising out of a vast and complex conspiracy resulting in the cutting and selling of timber. Clearly, there is no diversity between plaintiff and defendant, or between plaintiff and the others referred to, and no federal question has been asserted. Therefore, this court lacks subject matter jurisdiction to hear plaintiff's complaint.
For this reason, the court need not address the fact that plaintiff's complaint constitutes a "shotgun" approach to litigation, which has long been frowned upon by the Eleventh Circuit. See Cramer v. State of Florida, 117 F.3d 1258, 1263 (11th Cir. 1997) ("shotgun complaints are altogether unacceptable."); Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905, n. 9(11th Cir. 1996), cert. denied, 519 U.S. 1110 (1997); Anderson v. Dist. Bd. of Trustees of Cent. Florida Community College, 77 F.3d 364, 366 (11th Cir. 1996) ("a defendant faced with [such a complaint] is not expected to frame a responsive pleading"); Pelletier v. Zweifel, 921 F.2d 1465, 1522 (11th Cir.), cert. denied, 502 U.S. 855 (1991); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984). Further, the court need not address questions concerning any immunity from civil suit which may be available to Judge Byrne and the other Escambia County officials named or any issues pertaining to this court abstaining from hearing litigation which may be pending before Judge Byrne in the Escambia County Circuit Court, i.e., a land dispute between plaintiff and Mr. McCants.
Accordingly, it is ORDERED that plaintiff's complaint be and is hereby DISMISSED without prejudice for lack of subject matter jurisdiction.
DONE this 5th day of June, 2000.