THOMAS C. HINES, Plaintiff, vs. DEBORAH E. REED, a/k/a DEBORAH E. HINES, a/k/a DEBORAH E. HILL,

CIVIL ACTION 00-0955-CB-S

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION

170 F. Supp. 2d 1200; 2001 U.S. Dist.

March 7, 2001, Decided
March 7, 2001, Filed


SUBSEQUENT HISTORY: [**1] Adopting Order of April 2, 2001, Reported at: 2001 U.S. Dist. . Reported at: 170 F. Supp. 2d 1200 at 1202.

DISPOSITION: Recommended that this action be dismissed with prejudice for lack of subject matter jurisdiction.


COUNSEL: THOMAS C. HINES, SR., plaintiff, Pro se, Prichard, Al.

JUDGES: WILLIAM H. STEELE, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: WILLIAM H. STEELE

OPINION: [*1202]
REPORT AND RECOMMENDATION
Plaintiff, who is proceeding pro se, filed a handwritten complaint commencing this action (Doc. 1) together with a Motion to Proceed Without Prepayment of Fees (Doc. 2). This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.2(c)(1). It is recommended that this action be dismissed with prejudice for lack of subject matter jurisdiction.

I. Nature of Proceedings.
Plaintiff claims that the sole Defendant, his daughter, who had his power of attorney while he was incarcerated in federal prison from February, 1994, to June, 1997, took his social security disability benefits, which amounted to $ 5,733.00, and used them for her own purposes (Docs. 1 & 4). Plaintiff maintains that the Social Security Administration ordered him to repay this amount (Docs. 1 & 4). The attachments to the original complaint (Doc. [**2] 1) indicate that $ 148.00 has been withheld from Plaintiff's social security check from January, 1998, to December, 2000, to recover the overpayment made to Plaintiff while he was a prisoner. Plaintiff seeks $ 5,000.00 for his pain and suffering in addition to $ 5,733.00 and court costs (Docs. 1 & 4).
Plaintiff's original complaint did not state the basis of this Court's jurisdiction. Plaintiff was, therefore, ordered to file a superseding amended complaint for the purpose of identifying the basis of this Court's jurisdiction over his action and of providing facts to support his jurisdictional statement (Doc. 3). Plaintiff filed an amended complaint in which he identifies as bases of jurisdiction "Title II of the Social Security Act 42 U.S.C Section 401, et seq. and 1983, et seq. . . . 42 U.S.C. Section 405(g) as amended, and 1383(c)(3), as amended." (Doc. 4)

II. Discussion.
A federal court is a court of limited of jurisdiction. Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994). That is, a federal court is authorized to entertain only certain actions which [**3] the Constitution or Congress has authorized it to hear. Id. "It is to be presumed that a cause lies outside this limited jurisdiction, . . . , and the burden of establishing the contrary rests upon the party asserting jurisdiction, . . . ." Id. (citations omitted).
Because Plaintiff has identified several federal statutes as providing jurisdiction [*1203] for this Court to entertain his action, the Court finds that Plaintiff is attempting to assert as his jurisdictional basis federal question jurisdiction. A federal district court is granted federal question jurisdiction pursuant to 28 U.S.C. § 1331. This statute gives the district court subject matter jurisdiction to hear "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "The presence or absence of federal-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." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987). [**4] "If jurisdiction is based on the existence of a federal question, the jurisdictional allegation should state that the action arises under a particular statute or provision of the Constitution and the body of the complaint must state facts showing that the case does in fact arise under federal law." Kirkland Masonry, Inc. v. Comm'r Internal Revenue Serv., 614 F.2d 532, 533 (5th Cir. 1980) n1 (citing Wright, Federal Courts p. 327 (2d ed. 1970)); see Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994); Fed.R.Civ.P. 8(a).

n1 The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.

Because a court is powerless to act beyond its grant of subject matter jurisdiction, the court is obligated to raise whether it has subject matter jurisdiction at any time during the litigation. Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). [**5] "Once a court determines that there has been no grant that covers a particular case, the court's sole remaining act is to dismiss the case for lack of jurisdiction." Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1261 (11th Cir. 2000) (citing University of South Alabama v. American Tobacco Co., 168 F.3d 405, 409-10 (11th Cir. 1999)).
In the amended complaint, Plaintiff identifies several federal statutes as providing a basis for this Court's jurisdiction over his action. After review of these statutes, the undersigned finds that this Court lacks jurisdiction over Plaintiff's action and that Plaintiff's cause of action is one that arises under state law.
Plaintiff identifies 42 U.S.C. § 401, et seq., as a jurisdictional basis. This social security subchapter concerns federal old-age, survivors, and disability benefits. However, Plaintiff has not designated which of the subchapter's statutes provides a cause of action that allows him to sue a party who has converted his social security disability benefits. Moreover, the Court is unable to locate such a provision. The Court, however, observes that 42 U.S.C. § 402 [**6] (x) mandates that social security benefits not be paid to a person who is incarcerated at a penal institution or a correctional facility as a result of a criminal conviction and that 42 U.S.C. § 404 provides for the collection of overpayments.
Plaintiff also contends that 42 U.S.C. § 405(g) is a basis for this Court's jurisdiction. Subsection (g) is a part of the procedural and administrative scheme under § 405 for gaining social security disability benefits, which includes hearings and appeals. In particular, subsection (g) confers upon a party who has not received a favorable final decision from the Commissioner of Social Security the ability to come into federal district court for judicial review of the denial of social security disability [*1204] benefits. Subsection (g), however, does not authorize a private citizen to recover payments converted by another private citizen for her use.
Plaintiff further maintains that 42 U.S.C. § 1383(c)(3) is a basis for this Court's jurisdiction. An examination of § 1383 reveals that no subsection (c)(3) exists to § 1383. See 42 U.S.C. § 1383 (2000). [**7]
Additionally, Plaintiff specifies 42 U.S.C § 1983 as a basis for the Court's jurisdiction. In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish: "(1) . . . the conduct complained of was committed by a person acting under color of state law; and (2) . . . this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 664, 88 L. Ed. 2d 662 (1986). In the present action, Defendant does not act under color of state law, and Plaintiff has not establish a violation of a right arising under the Constitution or federal law. n2

n2 The undersigned observes the 42 U.S.C. § 1983 does not grant jurisdiction to the federal district court. Section 1983 is a remedial statute in that it creates a cause of action for a violation of constitutional and federal rights. Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038, 1042 n.7 (11th Cir. 1982). The statutes creating federal question jurisdiction are 28 U.S.C. § 1331 and § 1343(3). However, "where the complaint . . . is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court . . . must entertain the suit." Id. (quoting Bell v. Hood, 327 U.S. 678, 681-82, 66 S. Ct. 773, 775-76, 90 L. Ed. 939 (1946)). Therefore, the undersigned has directly addressed the statutes that Plaintiff identified even though they were not the statutes granting a district court federal question jurisdiction.

[**8]
Moreover, these statutes that Plaintiff identified as providing a jurisdictional basis for his action are inconsistent with his alleged facts. A plaintiff is required to identify the basis of the federal district court's jurisdiction and to "state facts showing that his case does in fact arise under federal law." Kirkland Masonry, 614 F.2d at 533. Plaintiff's facts do not demonstrate that his action arises under federal law. Rather, Plaintiff's facts demonstrate a potential cause of action against his daughter under state law for a conversion of his assets. Ex parte Vincent, 770 So. 2d 92 (Ala. 1999); Graham v. Preferred Abstainers Ins. Co., 689 So. 2d 188 (Ala. Civ. App. 1997); Lisenby v. Simms, 688 So. 2d 864 (Ala. Civ. App. 1997); Firemen's Ins. Co. v. Pugh, 686 So. 2d 281 (Ala. Civ. App. 1996).
Even though the Court is required to liberally construe a pro se litigant's pleadings, the Court does not have "license to serve as de facto counsel for a party . . ., or to re-write an otherwise deficient pleading in order to sustain an action. . . ." GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). [**9] Notwithstanding, after an examination of federal law, the Court does not find a provision giving this Court jurisdiction over Plaintiff's action. Finally, the other main source of federal jurisdiction - diversity of citizenship jurisdiction - has not been satisfied in this action. 28 U.S.C. § 1332. Plaintiff's daughter is also a citizen of Alabama and the amount in controversy does not meet the $ 75,000 jurisdictional threshold.

III. Conclusion.
Based upon the foregoing reasons, it is recommended that this action be dismissed [*1205] with prejudice for lack of subject matter jurisdiction.
The attached sheet contains important information regarding objections to the Report and Recommendation.
DONE and ORDERED this 7th day of March, 2001.
WILLIAM H. STEELE
UNITED STATES MAGISTRATE JUDGE
ATTACHMENT
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation, or anything in, it must, within ten days of the date of service of this document, file specific written objections with [**10] the Clerk of this Court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:


A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, [**11] a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.
William H. Steele
UNITED [**12] STATES MAGISTRATE JUDGE