United States District Court, W.D. Louisiana, Monroe Division
G. JAMES JUDGE.
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and Standing 3.111, the
above-captioned matter has been referred to the undersigned
magistrate judge for review, report and recommendation. For
reasons that follow, it is recommended that plaintiff's
complaint be dismissed, without prejudice, for lack of
subject matter jurisdiction. It is further recommended that
plaintiff's letter-motion for preliminary injunction
[doc. # 5] be DENIED.
September 13, 2017, plaintiff pro se Timothy Johnson, who is
proceeding in forma pauperis in this matter,
commenced the instant proceeding in federal court against
Evangeline Boyles, Jennifer McVay, Deanna Futch, and Toni
Henderson. [doc. # 1]. In his form pleading entitled,
“Complaint and Request for Injunction, ” Johnson
alleges that he had a “durable medical power of
attorney” in effect for his mother, Carolyn Johnson,
that authorized him to make medical decisions on her behalf.
(Compl. & Attachments). According to Johnson, however,
when his sister transferred his mother to Princeton Place
Nursing Facility, someone at the nursing home falsified a
power of attorney that superseded Johnson's power of
attorney and caused it to be revoked. Id. Johnson
does not seek monetary damages; he only wants his power of
attorney to be restored and any other power of attorney
checked the box on the form complaint for subject matter
jurisdiction on the basis of federal question, 28 U.S.C.
§ 1331 and explained that the “District Court
showed no evidence of the other relative [sic] power of
attorney that would be binding over mines [sic].”
October 17, 2017, the undersigned reviewed the complaint and
discerned no colorable federal question on the face of
plaintiff's complaint. (Oct. 17, 2017, Order [doc. # 4]).
Accordingly, the undersigned accorded plaintiff 14 days in
which to amend his complaint to identify the federal laws or
statutes that entitled him to relief. Id. The court
also directed plaintiff to allege precisely how and when each
defendant transgressed the applicable federal law.
Id. The court cautioned plaintiff that if he failed
to so comply, then his case may be dismissed for lack of
subject matter jurisdiction. Id.
October 24, 2017, plaintiff submitted a letter-motion whereby
he represented that he tried to file an “Application
for Injunction (General Form)” at the Lincoln Parish
courthouse, but was advised by the clerk's office that
the application appeared to be a federal form that needed to
be sent to Shreveport. [doc. # 5]. Plaintiff attached to his
letter a copy of his Application for Injunction, on which he
checked the box indicating that the application arose under
the “Human Rights Act 1998.” Id. He
stated on the form that he wanted an injunction-order
requiring the named defendants to send Carolyn Johnson to
“LSU/University” in Shreveport “to get
check [sic] out because she does not need feeding.”
Id. He also asked for an injunction-order
prohibiting defendants from meeting with one family member,
but not permitting plaintiff to participate in
decision-making about Carolyn Johnson on the (apparently
incorrect) basis that plaintiff does not have a power of
reaching the merits of a case, federal courts are obliged to
ensure that they enjoy subject matter jurisdiction to hear
the matter. See Sinochem Intern. Co. Ltd. v. Malaysia
Intern. Shipping Corp., 549 U.S. 422, 430-431, 127 S.Ct.
1184, 1191 (2007); Smith v. Texas Children's
Hospital, 172 F.3d 923, 925 (5th Cir. 1999)
(courts must examine the basis for the exercise of federal
subject matter jurisdiction). This practice ensures that a
court without jurisdiction does not end up “prematurely
dismissing a case with prejudice.” See In Re: Fema
Trailer Formaldehyde Products Liability Litigation
(Mississippi Plaintiffs), In Re: Fema Trailer Formaldehyde
Products Liability Litigation (Alabama Plaintiffs), 668
F.3d 281 (5th Cir. 2012) (citation omitted). Lack
of subject matter jurisdiction may be raised at any time.
Giles v. Nylcare Health Plans, Inc., 172 F.3d 332,
336 (5th Cir. 1999). A court must raise the issue
sua sponte if it discovers that it lacks subject
matter jurisdiction. Id.
case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Home
Builders Ass'n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v.
Ironworkers local 6 Pension Fund, 81 F.3d 1182, 1187
(2nd Cir. 1996)). The party seeking to invoke jurisdiction
bears the burden of demonstrating its existence. See
Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001); Howery v. Allstate Ins. Co., 243 F.3d 912,
916 (5th Cir. 2001). “[T]here is a presumption against
subject matter jurisdiction that must be rebutted by the
party bringing an action to federal court.” Coury
v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (citation
most common ways to invoke federal subject matter
jurisdiction are via federal question and diversity. 28
U.S.C. §§ 1331 & 1332. In the case sub
judice, the complaint does not contain requisite
allegations to establish diversity jurisdiction, 28 U.S.C.
§ 1332. For purposes of diversity, “[a]ll
plaintiffs must be diverse in citizenship from all defendants
. . .” and the parties' citizenship must be
“distinctly and affirmatively
alleged.” Farrell Const. Co. v. Jefferson Parish,
La., 896 F.2d 136, 139-140 (5th Cir. 1990);
Getty Oil, Div. Of Texaco v. Ins. Co. of North
America, 841 F.2d 1254, 1259 (5th Cir. 1988) (citation
omitted) (emphasis in citing source). Moreover, the amount in
controversy must exceed $75, 000. 28 U.S.C. § 1332.
all parties appear to reside in Louisiana. (Compl.).
Moreover, plaintiff does not seek any monetary damages, or
otherwise establish that his requested injunctive relief
exceeds the jurisdictional minimum. Accordingly, diversity
jurisdiction does not appear on the face of the complaint.
court also does not discern a colorable federal question on
the face of plaintiff's complaint.
“[F]ederal-question jurisdiction is governed by the
‘well-pleaded complaint rule, ' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Rivet v. Regions Bank of
Louisiana, 522 U.S. 470, 474, 118 S.Ct. 921, 925 (1998)
(citations omitted). Section 1331 jurisdiction is properly
invoked when plaintiff pleads a colorable claim
“arising under” the Constitution or laws of the
United States. Arbaugh v. Y & H Corporation, 546
U.S. 500, 126 S.Ct. 1235 (2006). A district court should
dismiss the case where “it appears certain that the