LADD v. MITCHELL et al

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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
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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
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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-
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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).
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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
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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).
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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
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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.
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