Muhammad v. Muhammad

• Decision Date: 19 October 2015
• Docket Number: Case No. 2:14cv592/MW
• Parties: KALIM A.R. MUHAMMAD, Plaintiff, v. BRENDA L. BETHEL MUHAMMAD, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

KALIM A.R. MUHAMMAD, Plaintiff, v. BRENDA L. BETHEL MUHAMMAD, et al., Defendants.

Case No. 2:14cv592/MW

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION

October 19, 2015

REPORT AND RECOMMENDATION

This cause is before the court on plaintiff's complaint filed pursuant to 42 U.S.C. § 1983 (doc. 1). As set forth in more detail below, plaintiff was twice informed of deficiencies in his complaint and directed to file an amended complaint or risk dismissal of the action. He failed to do so on both occasions. Pursuant to Fed. R. Civ. P. 41 (b), the court may sua sponte dismiss an action for failure to comply with an order of the court. Based on plaintiff's failure to file an amended complaint, as directed, the undersigned finds dismissal warranted.¹ Dismissal also is required because the court lacks subject matter jurisdiction.

BACKGROUND AND PROCEDURAL HISTORY

This matter was filed in the United States District Court for the Southern District of Alabama, Northern Division, on December 22, 2014. See doc. 1. Plaintiff's complaint, like the numerous other complaints he has filed, is based on a domestic dispute and related legal proceedings. Throughout his prolific litigation history, plaintiff has refused to accept adverse rulings, frequently filing motions to transfer and/or recuse. Once a lawsuit is dismissed, plaintiff files another lawsuit based on the same allegations and naming at least some of the same defendants, accusing those even tangentially involved in his prior litigation of various acts and degrees of misconduct. Presumably due to the nature of plaintiff's allegations, including claims of judicial misconduct, and repeated requests for recusal and transfer, the Eleventh Circuit Court of Appeals determined it would be in the public interest to assign Judge Mark E. Walker, of the United States District Court for the Northern District of Florida, to sit as a judge of the Southern District of Alabama for purposes of this case. See doc. 15. On May 18, 2015, the court entered a designation to that effect. See doc. 15.

Prior to Judge Walker's designation, United States Magistrate Judge Sonja F. Bivins, of the Southern District of Alabama, entered an order identifying deficiencies in plaintiff's complaint and requiring him to file an amended complaint.² See doc. 4. Judge Bivins explained that "[t]his is Plaintiff's fourth pro se lawsuit regarding the same general subject matter, namely the alleged breach of an agreement between Plaintiff and Brenda Bethel Muhammad regarding the manner in which disputes relating to their minor daughter would be resolved." Id. As Judge Bivins noted, and as indicated above, two of the prior lawsuits were dismissed based on plaintiff's repeated failure to comply with pleading requirements. See id. The other case "survived dismissal for pleading deficiencies 'by the very narrowest of margins,'" but ultimately was dismissed on summary judgment. Id. at 1-2 (quoting Muhammad v. Bethel, Civil Action 13-00030-WS-B, Doc. 31 at pg. 2).

Rather than file an amended complaint as directed by Judge Bivins, plaintiff filed a number of motions seeking, among other things, to have the case reassigned or transferred. Before addressing the outstanding motions, the undersigned reviewed plaintiff's complaint and, like Judge Bivins, found it deficient in a number of respects. In an order entered on July 13, 2015 (doc. 19), the undersigned noted that plaintiff has wholly failed to allege a basis for federal jurisdiction and explained that, although plaintiff invokes 28 U.S.C. § 1332, he has alleged facts that make it plain that complete diversity is lacking. Specifically, plaintiff alleges that he and a number of defendants are citizens of the state of Alabama, a fact that defeats diversity jurisdiction. See, e.g., Crook-Petite-El v. Bumble Bee Seafoods L.L.C., 502 F. App'x 886, 887 (11th Cir. 2012) ("In regard to diversity jurisdiction, pursuant to 28 U.S.C. § 1332, a district court has jurisdiction over all civil actions where (1) the amount in controversy exceeds $75,000, and (2) each defendant is a citizen of a state different from each plaintiff.").

The undersigned also explained that plaintiff has failed to plead facts demonstrating that jurisdiction properly can be invoked under 28 U.S.C.§§ 1331 and 1443, both of which he references in his complaint. As set forth above, plaintiff's complaint is based on a domestic dispute and related legal proceedings. To the extent plaintiff can assert a colorable claim based on an alleged breach of a family/custody agreement, such claim would lie exclusively under state law. With regard to the other claims, although plaintiff has mentioned a number of federal statutes, he has wholly failed to plead facts supporting a viable claim under any of those statutes. Although he complains about the results reached in his prior cases and seems to allege some sort of conspiracy among and misconduct by most, if not all, of the individuals involved, he has not alleged any specific action taken by any of the named defendants that would sustain a claim for the constitutional violations he has baldly asserted in his complaint. The undersigned thus found that plaintiff's complaint, even when very liberally construed, does not contain a short and plain statement of any claim showing that plaintiff is entitled to relief against any of the named defendants, see Fed. R. Civ. P. 8(a)(2), and directed him to file either a notice of voluntary dismissal or an amended complaint within thirty days.

Although plaintiff continued to file motions, he filed neither a notice of voluntary dismissal nor an amended complaint within the time allowed. The undersigned therefore entered an order directing plaintiff to show cause within fourteen days why the matter should not be dismissed for failure to prosecute and/or failure to comply with an order of the court (doc. 25). Attempting to proceed in a cautious manner, the undersigned has allowed more than fourteen days to transpire, yet plaintiff has not complied with the show cause order. Plaintiff's complaint thus should be dismissed for failure to comply with an order of the court. The complaint also should be dismissed for lack of subject matter jurisdiction.

DISCUSSION

I. Failure to Comply with an Order of the Court

The Eleventh Circuit has recognized that, "[p]ursuant to Fed.R.Civ.P. 41(b), a district court may sua sponte dismiss a plaintiff's action for failure to comply with the rules or any order of the court." Owens v. Pinellas Cty. Sheriff's Dept., 331 F. App'x 654, 656 (11th Cir. 2009); see also Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 526 (11th Cir. 1983). Unless stated otherwise, such a dismissal is presumed to be with prejudice. "Dismissal with prejudice," however, "is considered a sanction of last resort, applicable only in extreme circumstances, where there is a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Marshall v. Aryan Unlimited Staffing Solution/Faneuil Inc./MacAndrews Holding, 599 F. App'x 896, 898 (11th Cir. 2015) (internal marks omitted). Plaintiff's failure to comply with not one, but two, orders directing him to file an amended complaint justifies dismissal of this action, particularly in light of plaintiff's litigation history, which will be discussed in more detail below. See id.

Although the undersigned recommends dismissal without prejudice, it is likely that at least some of plaintiff's claims, to the extent any exist, are now barred by the applicable statutes of limitation and that a dismissal without prejudice will be tantamount to a dismissal with prejudice. While the undersigned would often endeavor to avoid such a result, in this instance, plaintiff has been repeatedly cautioned and advised - for more than five years - as to his pleading deficiencies and warned that failure to cure the deficiencies would result in the dismissal of his complaint. Plaintiff nevertheless has persisted in filing pleadings fraught with deficiencies previously identified and then twice failed to file an amended complaint in this case after being directed to do so and advised that failure to do so would result in dismissal of his complaint. Under the circumstances, the undersigned has no hesitation in recommending dismissal of plaintiff's complaint and, to the extent such dismissal is deemed to be with prejudice, the undersigned finds that plaintiff has engaged in contumacious conduct and that no lesser sanction will suffice. See Kammona v. Onteco Corp., 587 F. App'x 575, 582-83 (11th Cir. 2014) (noting that "a district court abuses its discretion when it sua sponte dismisses a civil action with prejudice without specifically finding that the plaintiff acted willfully and that a lesser sanction would not have sufficed"); see also Muhammad v. Muhammad, 561 F. App'x 834, (11th Cir. 2014) ("A district court may sua sponte dismiss an action under Fed.R.Civ.P. 41(b) for failing to comply with a court order. [D]ismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion. However, where the statute of limitations will bar future litigation of an action dismissed without prejudice, we review the dismissal as if it was with prejudice.") (internal marks and citations omitted); Owens, 331 F. App'x at 656 ("We review a Rule 41(b) dismissal without prejudice for abuse of discretion," and "[d]ismissal pursuant to Rule 41(b) upon disregard of an order, especially when the litigant has been forewarned, generally is not an abuse of discretion."); Tanner v. Neal, 232 F. App'x 924, 924-25 (11th Cir. 2007) (upholding dismissal without prejudice when the pro se plaintiff failed to file an amended complaint correcting the original complaint's pleading deficiencies); Jones v. Commonwealth Land Title Ins. Co., 459 F. App'x 808, 811 (11th Cir. 2012) (same); Giles v. Wal-Mart Distrib....