Lawrence L. Blankenship v. Gulf Power Company , 551 F. App'x 468 ( 2013 )


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  •            Case: 13-12002    Date Filed: 11/20/2013   Page: 1 of 9
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-12002
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:12-cv-00266-MW-EMT
    LAWRENCE L. BLANKENSHIP,
    Plaintiff-Appellant,
    versus
    GULF POWER COMPANY,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (November 20, 2013)
    Before HULL, MARCUS and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Case: 13-12002     Date Filed: 11/20/2013    Page: 2 of 9
    Lawrence Blankenship appeals the district court’s sua sponte dismissal of
    his pro se civil complaint against Gulf Power Company. After review, we affirm
    the district court’s dismissal, but vacate the district court’s judgment so that the
    proper basis for the dismissal can be reflected in the judgment.
    I. BACKGROUND
    A.    Complaint Allegations
    According to Blankenship’s pro se amended complaint (“the complaint”), in
    December 2011, Blankenship called Gulf Power to disconnect the power to his
    daughter’s Atilla Avenue residence in Pensacola, Florida because she was moving
    to New Orleans, Louisiana. On April 11, 2012, Gulf Power sent Blankenship a
    notice advising him that payment for the electrical service in his name at the Atilla
    Avenue residence was past due and that the past-due amount of $1,020.51 for the
    Atilla Avenue residence had been transferred to Blankenship’s account for his
    primary residence on Mitchell Lane in Pensacola. A May 2012 Gulf Power bill
    reflected a total charge of $1,075.95, including $925.51 for five “Previous
    Location Balance” charges.
    On May 26, 2012, Blankenship received notice from Gulf Power that it
    would disconnect the power at his Mitchell Lane residence on June 1 if he did not
    pay the outstanding balance of $1,015.95. Blankenship claimed that he did not
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    owe the outstanding balance and that the transfer of the Atilla Avenue residence’s
    balance to his primary residence account was unauthorized.
    Blankenship’s pro se complaint alleged numerous claims, including
    conspiracy, fraud, misrepresentation, intentional infliction of emotional distress,
    abuse of authority, and racketeering. Additionally, the complaint alleged
    violations of various Florida and federal statutes, including 18 U.S.C. § 1001, the
    “Responsible Utility Customer Protection Act,” and the “Public Utility Holding
    Company Act.” The complaint also alleged that Gulf Power, “clothed with the
    authority of the State law,” had violated Blankenship’s substantive and procedural
    due process rights, his equal protection rights, and “those rights from the Bill of
    Rights incorporated by the Due Process Clause of the Fourteenth Amendment.”
    Blankenship prepared his complaint on a civil rights complaint form for
    actions brought under 42 U.S.C. § 1983. The complaint alleged that “Citizenship”
    was the basis for jurisdiction and that the amount in controversy exceeded $10,000,
    but also cited 28 U.S.C. § 1343(a)(3), which gives district courts original
    jurisdiction over civil rights actions.
    In the prayer for relief, Blankenship asked for $10,000 in monetary
    damages, expenses, and court costs, compensation for non-economic damages, and
    an order directing Gulf Power to restore power service to his primary residence on
    Mitchell Lane.
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    B.    District Court Proceedings
    A magistrate judge issued a Report (“R&R”) recommending that
    Blankenship’s case be dismissed for lack of federal jurisdiction. Explaining that
    there is no federal question jurisdiction under 28 U.S.C. § 1331 to entertain wholly
    insubstantial or obviously frivolous claims, the R&R concluded that all of
    Blankenship’s alleged federal claims should be dismissed. Specifically, the R&R
    determined that (1) 18 U.S.C. § 1001 is a criminal statute that does not provide a
    private cause of action; (2) the Public Utility Holding Company Act was repealed
    in 2005 by the Energy Policy Act of 2005, which also does not provide a private
    cause of action; (3) there is no federal law titled the Responsible Utility Customer
    Protection Act (and the Pennsylvania law of that name was inapplicable to events
    occurring in Florida); (4) § 1983 does “not afford a basis for relief” because that
    statute only applies to action taken “under color of state law,” and Blankenship’s
    “assertion that Gulf Power was ‘cloaked with the power of state law’ [did] not
    make it so”; and (5) there is no other federal law that provides a private right of
    action for Blankenship’s claims about Gulf Power’s allegedly wrongful conduct.
    The R&R further concluded that Blankenship’s complaint failed to establish
    diversity jurisdiction under 28 U.S.C. § 1332(a) because, even assuming diverse
    citizenship, Blankenship had not pled the required $75,000 amount in controversy.
    The R&R specifically declined to make findings with respect to any state law
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    claims. Because the complaint’s allegations “reveal[ed] no discernible basis for
    federal jurisdiction,” the R&R recommended that the entire action be dismissed for
    “failure to raise a substantial non-frivolous federal claim.”
    The district court, over Blankenship’s objections, adopted the R&R “as the
    Court’s opinion.” The district court’s order, however, directed the clerk to “enter
    judgment stating, ‘This cause is DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii)
    for Plaintiff’s failure to state a claim upon which relief may be granted.” As
    directed, the clerk’s judgment stated that the case was dismissed pursuant to
    § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief could be granted.
    II. DISCUSSION
    Federal courts have limited jurisdiction and are “obligated to inquire into
    subject matter jurisdiction sua sponte whenever it may be lacking.” Buchese v.
    Town of Ponce Inlet, 
    405 F.3d 964
    , 975 (11th Cir. 2005). If at any time the district
    court determines that it lacks subject matter jurisdiction, “the court must dismiss
    the action.” Fed. R. Civ. P. 12(h)(3); see also Nat’l Parks Conservation Ass’n v.
    Norton, 
    324 F.3d 1229
    , 1240 (11th Cir. 2003).1
    “The district courts have original jurisdiction of all civil actions arising
    under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
    However, even a claim that arises under federal law may be dismissed for lack of
    1
    We review de novo questions concerning the subject matter jurisdiction of the district
    court. Bishop v. Reno, 
    210 F.3d 1295
    , 1298 (11th Cir. 2000).
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    subject matter jurisdiction if (1) the claim “‘clearly appears to be immaterial and
    made solely for the purpose of obtaining jurisdiction,’” or (2) the claim “‘is wholly
    insubstantial and frivolous.’” Blue Cross & Blue Shield of Ala. v. Sanders, 
    138 F.3d 1347
    , 1352 (11th Cir. 1998) (quoting Bell v. Hood, 
    327 U.S. 678
    , 682-83, 
    66 S. Ct. 773
    , 776 (1946)). “Under the latter Bell exception, subject matter
    jurisdiction is lacking only if the claim has no plausible foundation, or if the court
    concludes that a prior Supreme Court decision clearly forecloses the claim.” 
    Id. (internal quotation
    marks omitted); see also McGinnis v. Ingram Equip. Co., 
    918 F.3d 1491
    , 1494 (11th Cir. 1990) (en banc) (stating that the test is whether the
    claim alleged “is so patently without merit as to justify the court’s dismissal for
    want of jurisdiction” (internal quotation marks and ellipsis omitted)).
    Here, the district court properly concluded that Blankenship’s federal claims
    were so patently frivolous that it lacked subject matter jurisdiction under § 1331.
    As the district court determined, neither the statutes cited in Blankenship’s
    complaint, nor any other federal statute, provides a cause of action for Gulf
    Power’s allegedly wrongful conduct. Furthermore, nothing in the complaint
    indicates that Gulf Power’s alleged actions in attempting to collect the outstanding
    payment could be “fairly attributable” to the state and thus were taken “under color
    of state law,” which is necessary to obtain relief under § 1983. See Am. Mfrs.
    Mut. Ins. Co. v. Sullivan, 
    526 U.S. 40
    , 49-51, 
    119 S. Ct. 977
    , 985 (1999); Griffin
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    v. City of Opa-Locka, 
    261 F.3d 1295
    , 1303 (11th Cir. 2001). Given that
    Blankenship’s complaint failed to allege a substantial, nonfrivolous federal claim,
    the district court lacked subject matter jurisdiction under 28 U.S.C. § 1331. See
    
    Sanders, 138 F.3d at 1352
    .
    The district court also correctly concluded that it lacked diversity
    jurisdiction under 28 U.S.C. § 1332(a). “[T]o invoke a federal court’s diversity
    jurisdiction, a plaintiff must claim . . . that the amount in controversy exceeds
    $75,000,” and the plaintiff satisfies this requirement “by claiming a sufficient sum
    in good faith.” Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 
    329 F.3d 805
    ,
    807 (11th Cir. 2003); see also 28 U.S.C. § 1332(a). Blankenship’s complaint
    alleges only that the amount in controversy exceeds $10,000. Additionally,
    Blankenship’s complaint disputes that he owes Gulf Power the outstanding
    $1,020.51 balance and seeks monetary damages of only $10,000. Thus, it is
    evident from the face of the complaint that the amount in controversy does not
    exceed $75,000.
    Further, because the district court did not have subject matter jurisdiction in
    this case, it properly declined to exercise supplemental jurisdiction over
    Blankenship’s state law claims. See Carnegie-Mellon Univ. v. Cohill, 
    484 U.S. 343
    , 350, 
    108 S. Ct. 614
    , 619 (1988) (“[W]hen the federal-law claims have
    dropped out of the lawsuit in its early stages and only state-law claims remain, the
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    federal court should decline the exercise of jurisdiction by dismissing the case
    without prejudice.” (footnote omitted)). Thus, as the district court correctly
    concluded, Blankenship’s entire action was due to be dismissed for lack of subject
    matter jurisdiction.
    We nonetheless vacate the judgment below and remand for two reasons.
    First, although the district court correctly concluded that it lacked subject matter
    jurisdiction over Blankenship’s complaint, it did not in fact dismiss the complaint
    for that reason under Rule 12(h)(3). Instead, the district court, apparently in error,
    dismissed the complaint for failure to state a claim upon which relief can be
    granted, a merits determination not addressed in the R&R adopted by the district
    court. Because the district court lacked subject matter jurisdiction, however, it did
    not have authority to dismiss the complaint on the merits. 2 Second, the district
    court cited as the basis for the dismissal 28 U.S.C. § 1915(e)(2)(B)(ii). Yet,
    Blankenship paid the full filing fee and was not proceeding in forma pauperis.
    For these reasons, we vacate the district court’s judgment and remand for the
    district court to dismiss this action without prejudice for lack of subject matter
    jurisdiction.
    2
    We also note that the district court’s dismissal of Blankenship’s action for lack of
    subject matter jurisdiction would be an involuntary dismissal and, thus, without prejudice. See
    Fed. R. Civ. P. 41(b) (providing that an involuntary dismissal for lack of subject matter
    jurisdiction does not operate as an adjudication on the merits); Crotwell v. Hockman-Lewis Ltd,
    
    734 F.2d 767
    , 769 (11th Cir. 1984) (explaining that a district court’s dismissal of a case for lack
    of subject matter jurisdiction should be without prejudice).
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    VACATED AND REMANDED.
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