Mitchell v. DHR ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION VIRGIL MITCHELL, ) ) Plaintiff, ) ) vs. ) CIV. ACT. NO. 1:20-cv-411-TFM-C ) DHR, et al., ) ) Defendants. ) MEMORANDUM OPINION ORDER On October 28, 2020, the Magistrate Judge entered a report and recommendation which recommends Plaintiff’s complaint be dismissed without prejudice for lack of subject matter jurisdiction. See Doc. 7. Plaintiff timely filed objections. See Doc. 8. The Court has reviewed the report and recommendation, objections, and conducted a de novo review of the case file. For the reasons discussed below, the objections are OVERRULED and the Report and Recommendation is ADOPTED. 28 U.S.C. § 1915(e)(2)(B) provides, in pertinent part: “[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal – (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.” Thus, when granting permission to proceed in forma pauperis, the Court is required to perform a review and shall dismiss a case if it meets any of these statutory reasons. Additionally, as noted by the Magistrate Judge, a federal court is a court of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994). Though Plaintiff filed objections, they contain little discussion which addresses the substance of the Report and Recommendation. Whether Plaintiff’s allegations are true is not the issue here. Rather, the issue is this Court’s jurisdiction to hear the allegations. The burden is on the Plaintiff to establish jurisdiction to be heard in federal court (as opposed to a state or local court) and he fails to meet that burden. Further, he was given the opportunity to amend a noted deficiency and the amended complaint still fails to establish jurisdiction. Therefore, Plaintiff’s objections are OVERRULED. After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Report and Recommendation to which objection is made, the Report and Recommendation (Doc. 7) is ADOPTED as the opinion of the Court. Accordingly, it is ORDERED that this action is DISMISSED without prejudice for lack of subject matter jurisdiction. DONE and ORDERED this 2nd day of December, 2020. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE