United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
commenced the above-captioned case pro se and is
proceeding in forma pauperis (“IFP”).
Because she is proceeding IFP, Plaintiff's complaint must
be screened to protect potential Defendants. Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Pleadings
drafted by pro se litigants must be liberally
construed, Haines v. Kerner, 404 U.S. 519, 520-21
(1972), but the Court may dismiss a complaint, or any part
thereof, that is frivolous or malicious or that fails to
state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i) & (ii).
SCREENING OF THE COMPLAINT
names as Defendant A.T.A.T. (See doc. no. 1.) Taking
all of Plaintiff's factual allegations as true, as the
Court must for purposes of the present screening, the facts
are as follows.
2011, unidentified employees of A.T.A.T. removed a phone box
from Plaintiff's home in Augusta, Georgia, and put a
“government box” on her home. (Id. at
4.) A person named “Jeff” calls her and threatens
to rape and kill her, blow up her home, hurt her family, and
steal all their phones. (Id. at 6.) The Sheriff and
U.S. Marshal know about the situation but will not do
anything. (Id. at 7.) A.T.A.T. is attempting to
steal the box even though it is not theirs. (Id.)
Plaintiff will do what she needs to protect herself.
(Id. at 8.) Nobody is allowed on her property.
(Id.) Plaintiff is not a criminal and she is not
going anywhere. (Id. at 9.) This is a free country
and she does not need to be afraid of perverts.
(Id.) Plaintiff seeks as relief $50, 000.
(Id. at 4.)
Legal Standard for Screening
complaint or any portion thereof may be dismissed if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, or if it seeks monetary relief from a
defendant who is immune to such relief. See 28
U.S.C. § 1915(e)(2)(B). A claim is frivolous if it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 327
(1989). “Failure to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6).” Wilkerson v. H & S, Inc., 366
Fed.Appx. 49, 51 (11th Cir. 2010) (per curiam)
(citing Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim for relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
unadorned, the defendant unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
complaint is insufficient if it “offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 555, 557). In short,
the complaint must provide a “‘plain
statement' possess[ing] enough heft to ‘sho[w] that
the pleader is entitled to relief.'”
Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P.
the court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam);
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). However, this liberal construction does not
mean that the court has a duty to re-write the complaint.
Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th
Subject Matter Jurisdiction
a “federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
should itself raise the question of subject matter
jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE
Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). Federal
courts must always dismiss cases upon determining that they
lack subject matter jurisdiction, regardless of the stage of
the proceedings. Goodman ex rel. Goodman v. Sipos,
259 F.3d 1327, 1331 n.6 (11th Cir. 2001). In order to invoke
the jurisdiction of the Court, a plaintiff must properly
“allege the jurisdictional facts, according to the
nature of the case.” McNutt v. Gen. Motors
Acceptance Corp. of Indiana, 298 U.S. 178, 182 (1936).
jurisdiction over a case, a district court must have at least
one of the three types of subject-matter jurisdiction: (1)
jurisdiction pursuant to a specific statutory grant; (2)
federal question jurisdiction pursuant to 28 U.S.C. §
1331; or (3) diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a). Baltin v. Alaron Trading Corp., 128
F.3d 1466, 1469 (11th Cir. 1997). The party asserting
jurisdiction has the burden of establishing that their ...