United States District Court, S.D. Georgia, Augusta Division
ORDER
J.
RANDAL HALL, CHIEF JUDGE
On
January 24, 2018, Defendant Sharon Bush Ellison
("Ellison"), proceeding pro se, filed a
"Notice of Removal" in which she purported to
remove six criminal traffic cases from Richmond County State
Court to federal court pursuant to 28 U.S.C. § 1443, 18
U.S.C. § 242, and 42 U.S.C. § 1985(3). (Doc. 1.)
Ellison also filed a motion to proceed in forma
pauperis ("IFP"). (Doc. 2.) On January 31,
2018, the United States Magistrate Judge conducted an initial
review of Ellison's motions and issued a Report and
Recommendation (“R&R") in which he recommended
that Ellison's IFP motion be denied as moot and this case
be dismissed for lack of subject matter jurisdiction. (Doc.
7.) The Magistrate Judge further recommended that,
“[a]lthough 'removal' was never accomplished in
a procedurally proper manner, in an abundance of caution, . .
. the six traffic cases be remanded to the State Court of
Richmond County." (Id. (emphasis omitted).)
Ellison subsequently filed objections to the R&R as well
as a motion to transfer venue. (Docs. 9, 10, 12; see
also Docs. 6, 11, 13.)
On
February 21, 2018, after a careful, de novo review
of the file, this Court adopted the Magistrate Judge's
R&R as its own opinion. (Doc. 14 (the ''Dismissal
Order").) Accordingly, the Court, inter alia:
(i) denied as moot Ellison's IFP motion and motion to
transfer venue (docs. 2, 12); (ii) dismissed and closed this
case for lack of subject matter jurisdiction; and (iii)
despite noting that removal was never properly accomplished,
remanded the underlying criminal traffic cases to the State
Court of Richmond County. (Doc. 14; see also Doc.
15.) On March 16, 2018, Ellison filed her present motion to
alter or amend the Dismissal Order. (Doc. 19; see
also Doc. 22.) On March 21, 2018, Ellison filed her
present motion for new trial. (Doc. 20.) On April 11, 2018,
Ellison filed a motion requesting an evidentiary hearing on
her motion for new trial. (Doc. 25.)
As
discussed in the Magistrate Judge's R&R, this Court
lacks subject matter jurisdiction over the state criminal
traffic cases that Ellison sought to remove to this Court.
“A federal court not only has the power but also the
obligation at any time to inquire into jurisdiction whenever
the possibility that jurisdiction does not exist
arises." Fitzgerald v. Seaboard Sys. R.R.,
Inc., 760 F.2d 1249, 1251 (11th Cir. 1985) (per curiam)
(citations omitted). Indeed,
A court lacking jurisdiction cannot render judgment but must
dismiss the cause at any stage of the proceedings in which it
becomes apparent that jurisdiction is lacking. The party
invoking the jurisdiction of the court has the duty to
establish that federal jurisdiction does exist but, since the
courts of the United States are courts of limited
jurisdiction, there is a presumption against its existence.
Thus, the party invoking the federal court's jurisdiction
bears the burden of proof.
If the parties do not raise the question of lack of
jurisdiction, it is the duty of the federal court to
determine the matter sua sponte. Therefore, lack of
jurisdiction cannot be waived and jurisdiction cannot be
conferred upon a federal court by consent, inaction or
stipulation.
Id. (internal quotations, citations, and alterations
omitted).
Ellison
did not allege any legitimate basis for the exercise of
subject matter jurisdiction in her notice of removal and has
failed to demonstrate the existence of subject matter
jurisdiction in her present motions or other filings with the
Court. Accordingly, because Ellison's present motions -
and evidence submitted therewith - fail to cure this fatal
error, they are futile. See Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 974-75 (11th Cir. 2005)
("Simply put, once a federal court determines that it is
without subject matter jurisdiction, the court is powerless
to continue." (citations omitted)). Further, Ellison has
failed to demonstrate newly-discovered evidence, manifest
errors of law or fact, or any other reason that would justify
a finding that the Court should alter, amend, or otherwise
grant Ellison relief from the Dismissal Order. See Arthur
v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (Rule
59(e) motion may not be used “to relitigate old
matters, raise argument or present evidence that could have
been raised prior to the entry of judgment, " as
"the only grounds for granting a Rule 59(e) motion are
newly-discovered evidence or manifest errors of law or
fact"); see also Fed.R.Civ.P. 59(e) &
60(b). Moreover, because the Court has not held an initial
trial in the present case, the court cannot grant a new,
subsequent trial. See Fed.R.Civ.P. 59(a)(1) ("A
court may grant a new trial, on motion, after a jury
trial or nonjury trial." (emphasis added)); see
also LR 7.2, SDGa. ("Motions shall generally be
determined upon the motion and supporting documents filed as
prescribed herein.").[1]
Accordingly,
upon due consideration, IT IS HEREBY ORDERED
that Ellison's motion to alter or amend (docs. 19, 22),
motion for new trial (doc. 20), and request for evidentiary
hearing (doc. 25) are DENIED. This case
shall remain CLOSED.
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Notes:
[1] To the extent Ellison's notice of
removal can be liberally construed as a writ of habeas
corpus, such a filing would be premature because she failed
to plead or make any showing that she is in custody in
relation to the state-court proceedings of which she
complains. See 28 U.S.C. § 2254 ("The
Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court . . . .")
(emphasis added). Further, to the extent Ellison's notice
of removal can be liberally construed as attempting to assert
a claim under 42 U.S.C. § 1983, such claim would be
subject to dismissal for failure to allege the specific
constitutional right violated. See Jordan v. Mosley,
298 Fed.Appx. 803, 805 (11th Cir. 2008) ("The first task
in a section 1983 suit is 'to isolate the precise
constitutional violation with which [the defendant] is
charged.'" (quoting Baker v. McCollan, 443
U.S. 137 (1979))). Moreover, even if the Court were to
liberally construe the totality of Ellison's filings and
find that she was attempting to assert a malicious
prosecution claim under the Fourth Amendment pursuant to
Section 1983, that claim would fail because she has failed to
show the prosecution has terminated in her favor. See
Heck v. Humphrey, 512 U.S. 477, 484 (1994) ("One
element that must be alleged and proved in a malicious
prosecution action is termination of the prior criminal
proceeding in favor of the accused." (citation
omitted)). Finally, Ellison's attempt to invoke 42 U.S.C.
§ 1985(3) within her notice of removal also fails
because she has provided no factual support for conspiracy or
for officers going in disguise on the highway. See Mont
ford v. Moreno, No. 04-12909, 2005 WL 1369563, at *7, *8
(11th Cir. June 9, 2005) (affirming dismissal of conspiracy
claims when pro se Plaintiff made only
"conclusory allegations of a conspiracy and failed to
allege any ...