3:26-cv-00238•LADD v. MITCHELL et al
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1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION ANTHONY SAM LADD, Plaintiff, vs. Case No.: 3:26cv238/AW/ZCB GENE MITCHELL, et al., Defendants. / REPORT AND RECOMMENDATION Plaintiff, a prisoner proceeding pro se, commenced this action by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. 1). On January 20, 2026, the Court ordered Plaintiff to show cause why this case should not be dismissed for lack of subject matter jurisdiction. (Doc. 3). Plaintiff has responded to the show cause order. (Doc. 4). Dismissal is warranted for the reasons explained below. “Federal courts . . . are courts of limited jurisdiction.” Wu v. Liu, 131 F.4th 1295, 1298 (11th Cir. 2025) (cleaned up). If a federal court “determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Federal subject matter jurisdiction is based upon either federal question or diversity jurisdiction, or jurisdiction under a specific statutory grant. See 28 Case 3:26-cv-00238-AW-ZCB Document 5 Filed 02/12/26 Page 1 of 8
2 U.S.C. §§ 1331, 1332; Wilson v. Hearos, LLC, 128 F.4th 1254, 1260 (11th Cir. 2025). Federal question jurisdiction exists when an action arises under federal law. 28 U.S.C. § 1331. Actions arise under federal law “when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Schleider v. GVDB Operations, LLC, 121 F.4th 149, 155-56 (11th Cir. 2024). This “well-pleaded complaint rule means that a federal question is ‘presented’ when the complaint—on its face—invokes federal law as the basis for relief.” Id. at 156. Claims based on state law generally do not confer federal question jurisdiction. See Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1290 (11th Cir. 2004). A second way to invoke federal subject matter jurisdiction is through diversity jurisdiction. Diversity jurisdiction exists when the parties are residents of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). “[T]he plaintiff’s amount-in- controversy allegation is accepted if made in good faith.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014). “Diversity jurisdiction requires complete diversity; every plaintiff must be diverse Case 3:26-cv-00238-AW-ZCB Document 5 Filed 02/12/26 Page 2 of 8
3 from every defendant.” Hensley v. Hartford Cas. Ins. Co., 113 F.4th 1327, 1332 (11th Cir. 2024). The burden to establish federal subject matter jurisdiction rests on the party asserting it. Lowery v. Alabama Power Co., 483 F.3d 1184, 1207 (11th Cir. 2007). Before dismissing a case for lack of subject matter jurisdiction, the court should provide the plaintiff with notice and an opportunity to respond. Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1248 (11th Cir. 2015). Having reviewed the complaint, it provides no basis for federal subject matter jurisdiction. Plaintiff uses the Court’s civil rights complaint form to assert his allegations. But it is clear Defendants are not subject to liability under 42 U.S.C. § 1983. Plaintiff alleges his former criminal defense attorney, Defendant Gene Mitchell, improperly gave a check intended for Plaintiff to Plaintiff’s son—Defendant Diquan Jones. (Doc. 1 at 2-7). Defendant Mitchell, however, is not subject to liability under § 1983 merely because he was Plaintiff’s defense attorney. See Rolle v. Raysor, 267 F. App’x 925, 926 (11th Cir. 2008) (“[A] defense attorney is not a state actor under section 1983.”); Huxley v. Verycken, No. 8:25-CV-624-SDM- Case 3:26-cv-00238-AW-ZCB Document 5 Filed 02/12/26 Page 3 of 8
4 SPF, 2025 WL 1786363, at *2 (M.D. Fla. June 27, 2025) (“[N]o defense counsel—whether publicly provided or privately retained—acts under color of law.”). And Defendant Jones appears to merely be Plaintiff’s son and a private individual—not a state actor. Marchese v. Stevenson & Klotz L. Firm, No. 3:18CV309/LAC/EMT, 2018 WL 2075337, at *2 (N.D. Fla. Apr. 3, 2018) (“Because private citizens do not generally act under color of state law, they are not ordinarily subject to suit under Section 1983.”), adopted, 2018 WL 2074188 (N.D. Fla. May 3, 2018). Because Defendants are not subject to liability under § 1983, Plaintiff’s use of the Court’s § 1983 complaint form is insufficient to confer federal subject matter jurisdiction.1 See O’Neal v. Allstate Indem. 1 See also Terry v. Desautels, No. 2:24-CV-727-RAH-JTA, 2025 WL 2089310, at *9 (M.D. Ala. July 24, 2025) (dismissing without prejudice § 1983 claim for lack of subject matter jurisdiction where the complaint “contains no colorable allegation Defendants acted under color of state law or violated a constitutional right or federal statute, nor does it contain any facts from which such allegations could be generously construed or inferred”), adopted, 2025 WL 2375145 (M.D. Ala. Aug. 14, 2025); Moorer v. Trump, No. 3:21CV872-MCR-HTC, 2021 WL 4138702, at *2 (N.D. Fla. July 16, 2021) (“The general rule governing pleading federal jurisdiction requires more than a simple allegation that jurisdiction exists or citation of a federal statute. Rather, it is required that the complaint clearly set out the basic facts necessary to support the conclusion that there is federal jurisdiction.”), adopted, 2021 WL 4134669 (N.D. Fla. Sept. 9, 2021). Case 3:26-cv-00238-AW-ZCB Document 5 Filed 02/12/26 Page 4 of 8
5 Ins. Co. Inc., No. 20-14712, 2021 WL 4852222, at *2-3 (11th Cir. Oct. 19, 2021) (affirming dismissal for lack of subject matter jurisdiction where the district court held that the plaintiff “failed to allege a substantial, nonfrivolous federal claim that would implicate the court’s federal question jurisdiction”). Aside from using the Court’s § 1983 complaint form, Plaintiff provides no other allegations or claims to invoke the Court’s federal question jurisdiction. Where the complaint form asks Plaintiff to list federal laws at issue in this case, Plaintiff lists six apparent claims: (1) Neglect; (2) Fraud; (3) Pain and Suffering; (4) Malpractice; (5) Breach of Confidentiality; and (6) Grand Theft. (Doc. 1 at 8). But these claims arise under Florida law rather than federal law.2 And nowhere in Plaintiff’s 2 See Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1339 (11th Cir. 2012) (negligence); Otto Candies, LLC v. Citigroup Inc., 137 F.4th 1158, 1185 (11th Cir. 2025) (fraud); Redus Fla. Com., LLC v. Coll. Station Retail Ctr., LLC, 777 F.3d 1187, 1197 (11th Cir. 2014) (legal malpractice); Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir. 2012) (breach of fiduciary duty); Am. Honda Motor Co. v. Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1179 (M.D. Fla. 2005) (breach of fiduciary duty/confidential relationship); cf. Foley v. Orange Cnty., Fla., No. 6:12- CV-269-ORL-37, 2012 WL 6021459, at *7 (M.D. Fla. Dec. 4, 2012) (pain and suffering) (“[T]here is no need to set out a separate count for punitive damages. Punitive damages are a form of relief, not a freestanding cause of action. Such a claim for damages must be linked to a substantive claim for relief.”). Plaintiff’s claim for “Grand Theft” is also insufficient to Case 3:26-cv-00238-AW-ZCB Document 5 Filed 02/12/26 Page 5 of 8
6 complaint does he cite any specific provision of federal law sufficient to invoke the Court’s federal question jurisdiction under § 1331. Accordingly, Plaintiff has not met his burden to establish federal question jurisdiction. Although Plaintiff does not invoke diversity jurisdiction under § 1332, it is apparent that the complaint provides no basis for it. Plaintiff states that both he and Defendants are residents of Florida. (Doc. 1 at 2- 3). Therefore, there is no complete diversity between the parties as required for diversity jurisdiction. Before recommending dismissal for lack of subject matter jurisdiction, the Court provided Plaintiff with notice and an opportunity to respond by way of the show cause order. (Doc. 3). In response to the show cause order, Plaintiff states that he “would like the Court to fufill justice from the attorney Gene Mitchell.” (Id.). Plaintiff references terms confer federal question jurisdiction because Plaintiff lacks standing to enforce criminal statutes, and civil theft arises under state law. See Shaw v. Scerbo, No. 222CV00105JESNPM, 2022 WL 888921, at *4 (M.D. Fla. Mar. 25, 2022) (“It is a longstanding principle of American jurisprudence that a civil litigant generally cannot seek the enforcement of criminal statutes.”); United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009) (civil theft). Case 3:26-cv-00238-AW-ZCB Document 5 Filed 02/12/26 Page 6 of 8
7 such as “negligence,” “abuse,” “pain and suffering,” exploitation,” “fraud,” contractual responsibility,” and his money being “stolen.” (Id.). Even assuming the truth of all of Plaintiff’s claims and assertions, nothing in Plaintiff’s response suggests a basis for the Court to have subject matter jurisdiction over this case. And despite Plaintiff “requesting $2.5 million dollars” for the alleged theft or misappropriation of his check (Doc. 4), the fact remains that Defendants, like Plaintiff, are residents of Florida (Doc. 1 at 2-3)—thereby destroying the complete diversity of citizenship required for diversity jurisdiction under § 1332. Because Plaintiff has failed to meet his burden of showing that this Court has subject matter jurisdiction, dismissal is warranted. Accordingly, it is respectfully RECOMMENDED that: 1. This case be DISMISSED without prejudice for lack of subject matter jurisdiction. 2. The Clerk of Court be directed to close this case. At Pensacola, Florida, this 12th day of February 2026. /s/ Zachary C. Bolitho Zachary C. Bolitho United States Magistrate Judge Case 3:26-cv-00238-AW-ZCB Document 5 Filed 02/12/26 Page 7 of 8
8 Notice To The Parties Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court’s internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. Case 3:26-cv-00238-AW-ZCB Document 5 Filed 02/12/26 Page 8 of 8
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