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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHERYL L. SPIVEY, §

Plaintiff, §

§

v. § 3:22-cv-00923-X (BT)

§

NFN NLN, §

 Defendant. §

CHERYL L. SPIVEY, §

Plaintiff, §

§

v. § 3:22-cv-00936-S (BT) 

§

TD JAKES MINISTRIES., §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pro se Plaintiff Cheryl L. Spivey continues her serial litigation activity. 

In two cases referred to the undersigned for pretrial management, Spivey 

failed to establish subject matter jurisdiction exists. She also failed to comply 

with a court order. The Court should therefore dismiss these cases (Case 

Numbers 3:22-cv-923-X-BT and 3:22-cv-936-S-BT) without prejudice and 

warn Spivey that she may be sanctioned and/or barred from filing new cases 

if she continues her vexatious conduct. 

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Background

Over the span of two days in April 2022, Spivey filed four pro se civil 

lawsuits in the Northern District of Texas. Two of those cases, Case Numbers 

3:22-cv-924-S-BN and 3:22-cv-935-D-BN, have already been dismissed for 

lack of subject-matter jurisdiction. 

On April 26, 2022, Spivey filed Case Number 3:22-cv-923-X-BT in 

this Court. Along with her complaint, she filed a motion to proceed in forma 

pauperis. (Case Number 3:22-cv-923-X-BT, ECF No. 4.) Spivey did not sign 

or date her motion to proceed in forma pauperis, but it was otherwise 

complete. On April 28, the Court issued an Order and Notice of Deficiency, 

which ordered Spivey to file a complaint in compliance with Federal Rule of 

Civil Procedure 8(a) and pay the $402.00 filing fee or file a proper motion 

to proceed in forma pauperis. (Case Number 3:22-cv-923-X-BT, ECF No. 

5.) The order informed Spivey that failure to respond and cure the 

deficiencies by May 30 could result in a recommendation that her case be 

dismissed. 

On April 27, 2022, Spivey filed Case Number 3:22-cv-936-S-BT in this 

Court. Along with her complaint, she filed a proper motion to proceed in 

forma pauperis. (Case Number 3:22-cv-936-S-BT, ECF No. 4.) The next 

day, the Court granted her motion to proceed in forma pauperis. (Case 

Number 3:22-cv-936-S-BT, ECF No. 6.) The Court also issued an Order and 

Notice of Deficiency, which ordered Spivey to file a complaint in compliance 

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with Federal Rule of Civil Procedure 8(a). (Case Number 3:22-cv-936-S-BT, 

ECF No. 7.) The Court informed Spivey that failure to respond and cure the 

deficiency by May 30 could result in a recommendation that her case be 

dismissed. 

Legal Standards and Analysis

Subject Matter Jurisdiction

The Court sua sponte considers whether it has subject-matter 

jurisdiction.

Federal courts have limited subject-matter jurisdiction and cannot 

entertain cases unless authorized by the Constitution and legislation. Griffin 

v. Lee, 621 F.3d 380, 388 (5th Cir. 2010); see also Coury v. Prot, 85 F.3d 

244, 248 (5th Cir. 1996). Federal courts are obliged to examine the basis for 

the exercise of federal subject-matter jurisdiction. Smith v. Texas Children's 

Hosp., 172 F.3d 923, 925 (5th Cir. 1999). A federal district court may 

examine its subject-matter jurisdiction over a matter, sua sponte, at any 

time. Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999)

(a court must raise the issue sua sponte if it discovers that it lacks subjectmatter jurisdiction); see also MCG, Inc. v. Great W. Energy Corp., 896 F.2d 

170, 173 (5th Cir. 1990) (“Federal courts, both trial and appellate, have a 

continuing obligation to examine the basis for their jurisdiction. The issue 

may be raised by parties, or by the court sua sponte, at any time.”). 

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Federal district courts have original jurisdiction over two types of 

cases: (1) cases that arise under federal law, generally referred to as “federal 

question jurisdiction,” and (2) cases in which the amount in controversy 

exceeds $ 75,000 and there is complete diversity of citizenship among the 

parties (“diversity jurisdiction”). 28 U.S.C. §§ 1331 (federal question 

jurisdiction) and 1332(a) (diversity jurisdiction); see also Home Depot U. S. 

A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019). There is a presumption 

against subject-matter jurisdiction, and it must be rebutted by the party 

filing an action in federal court. See Coury, 85 F.3d at 248. “The party 

seeking to invoke the jurisdiction of the federal court has the burden of 

proving that jurisdiction exists.” Aetna Casualty & Surety Co. v. Hillman, 

796 F.2d 770, 775 (5th Cir. 1986); see also St. Paul Reinsurance Co., Ltd. v. 

Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). 

When a litigant is proceeding pro se, the court must liberally construe 

his pleadings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (recognizing 

that pro se pleadings are “to be liberally construed” and “held to less 

stringent standards than pleadings drafted by lawyers”); see also Pena v. 

United States, 122 F.3d 3, 4 (5th Cir. 1997) (“Because [the party] is pro se, 

we construe his pleadings liberally.”) (citing Nerren v. Livingston Police 

Dep’t, 86 F.3d 469, 472 & n.16 (5th Cir. 1996)); Hernandez v. Maxwell, 905 

F.2d 94, 96 (5th Cir. 1990) (citing Haines v. Kerner, 404 U.S. 519 (1972), 

and noting that it calls for an expansive reading of pro se pleadings). 

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When determining whether federal-question jurisdiction exists, it 

“must be determined by reference to the ‘well pleaded complaint.’” Merrell 

Dow Pharms. Inc. v . Thompson, 478 U.S. 804, 808 (1986) (citation 

omitted). This means that the complaint must “raise issues of federal law 

sufficient to support federal question jurisdiction.” Rodriquez v. Pacificare 

of Tex., Inc., 980 F.2d 1014, 1017 (5th Cir. 1993). Generally, there is no 

federal jurisdiction when the plaintiff pleads only a state law cause of action. 

Bernhard v. Whitney Nat’l Bank, 523 F.3d 546, 551 (5th Cir. 2008). 

In Case Number 3:22-cv-923-X-BT, Spivey alleges, “Dallas Lawyer 

Hit My Vehicle in 2010.” Compl. (ECF No. 3) 1. She further alleges that the 

lawyer “Left [the] Scene” and “its [sic] on file”. Id. Spivey claims that the 

lawyer “won [the] case cause his picture depicts the New Elm & Field not the 

old 1 way when accident happened”. Id. She further claims that “Mothers 

against Drunk Driving has all done”. Id. In her Civil Cover Sheet, Spivey 

represents that she is a citizen of this state, and her claims involve “assault, 

libel & slander”. Id. 2. Under the summary of her cause of action, she states 

“Lawyer Left Scene after hitting my car”. Id.

In Case Number 3:22-cv-936-S-BT, Spivey alleges that she attended 

the Dallas Campus of T.D. Jakes’s Ministries for “20 some” years. Id. 1. Her 

van broke down on the church property before she could pull it into a 

parking space. The parking lot attendants and security responded by 

surrounding her, and they made her “flee.” Id. Spivey was advised that they 

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were going to tow her van. She claims that after she eventually got parked, 

they “trespassed” her. Id. Spivey alleges that she was able to get a “Dallas 

Deputy Chief” to “overturn[ ]” this decision. Id. She further alleges that she 

cannot go back to T.D. Jakes’s church because she is too embarrassed and 

humiliated. Spivey further alleges they “piss[ed]” [her] [off].” Id. She 

concludes that due to the actions taken by T.D. Jakes’s Ministries, she 

missed an entrepreneur conference with Tyler Perry that was hosted by T.D. 

Jakes in Charlotte. Spivey explains that she “did not feel safe to go.” Id. In 

her Civil Cover Sheet, she represents that she is a citizen of this state, and 

she also states that her claims implicate the Americans with Disabilities Act 

(ADA). Id. 2. Under her cause of action, Spivey states, “Threatening Manor 

[sic] towards person under a disability”. Id.

Spivey fails to sufficiently plead facts supporting federal question 

jurisdiction. She marked on her Civil Cover Sheet in Case Number 3:22-cv936-S-BT that her case involves the ADA, but she alleges only state law 

causes of action in both cases. And, according to Spivey, Case Number 3:22-

cv-923-X-BT involves assault, libel, and slander. Her bare reference in Case 

Number 3:22-cv-936-S-BT to the ADA is inconsistent with her other 

assertions and her factual allegations. Likewise, her bare reference to the 

ADA is not sufficient, by itself, to confer subject-matter jurisdiction on the 

Court. Additionally, Spivey implies in Case Number 3:22-cv-936-S-BT that 

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she suffers from a disability, but she does not state what disability she 

allegedly suffers from. 

Spivey also fails to plead facts demonstrating subject-matter 

jurisdiction based on diversity jurisdiction. “Diversity jurisdiction under 28 

U.S.C. § 1332 only exists where the parties are citizens of different states and 

the amount in controversy exceeds $ 75,000.” White v. FCI USA, Inc., 319 

F.3d 672, 674 (5th Cir. 2003). When the asserted basis of federal jurisdiction 

is the diversity of the parties under § 1332, the party seeking to invoke 

federal diversity jurisdiction bears the burden of establishing that the parties 

are diverse and the amount in controversy exceeds $75,000. Manguno v. 

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). In Case 

Numbers 3:22-cv-923-X-BT and 3:22-cv-936-S-BT, Spivey claims that she 

is a citizen of this state, but she does not state whether the defendants are. 

(Case Number 3:22-cv-923-X-BT, ECF No. 3 at 2; Case Number 3:22-cv936-S-BT, ECF No. 3 at 2.) In Case Number 3:22-cv-923-X-BT, Spivey 

alleges, “Dallas Lawyer Hit My Vehicle in 2010.” Compl. (ECF No. 3). 

Similarly, in both cases, Spivey does not state what relief she seeks, and she 

does not suggest that she is seeking monetary damages. She does not meet 

her burden of demonstrating that the amount in controversy exceeds 

$75,000. See Hartford Ins. Grp. v. Lou-Con, Inc., 293 F.3d 908, 910 (5th 

Cir. 2002) (noting the party invoking federal jurisdiction must establish the 

amount in controversy is above $75,000 by a preponderance of the 

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evidence). For these reasons, Spivey has failed to meet her burden of 

showing the parties are diverse and the amount in controversy exceeds 

$75,000. 

In sum, even under the most liberal construction, Spivey has failed to 

allege facts supporting either federal question or diversity jurisdiction. 

Spivey’s complaints in Case Numbers 3:22-cv-923-X-BT and 3:22-cv-936-

S-BT should therefore be dismissed sua sponte for lack of subject-matter 

jurisdiction. 

Rule 41(b)

Also, in both of her cases, Spivey has failed to obey a court order and 

also failed to prosecute. Rule 41(b) allows a court to dismiss an action sua 

sponte for failure to prosecute or for failure to comply with the federal rules 

or any court order. Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th 

Cir. 2018) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 

1988) (per curiam)); accord Nottingham v. Warden, Bill Clements Unit, 837 

F.3d 438, 440 (5th Cir. 2016) (failure to comply with a court order); Rosin 

v. Thaler, 450 F. App’x 383, 383-84 (5th Cir. 2011) (per curiam) (failure to 

prosecute). “This authority [under Rule 41(b)] flows from the court’s 

inherent power to control its docket and prevent undue delays in the 

disposition of pending cases.” Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 

399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co., 370 U.S. 626 

(1962)). 

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Spivey has failed to comply with the Court’s orders. In Case Number 

3:22-cv-923-X-BT, Spivey failed to pay the $402.00 filing fee or file a proper 

motion for leave to proceed in forma pauperis. In both cases, she failed to 

file a complaint in compliance with Rule 8(a), which requires a short and 

plain statement of a claim showing she is entitled to relief. Fed. R. Civ. P. 

8(a)(2). The Court cannot screen these two cases, and thus litigation cannot 

proceed, until Spivey cures these deficiencies. Dismissal without prejudice 

is warranted under these circumstances. Therefore, the Court should 

dismiss Case Numbers 3:22-cv-923-X-BT and 3:22-cv-936-S-BT under Rule 

41(b). 

Sanctions

As noted, Spivey has filed four pro se civil lawsuits in the Northern 

District of Texas. She filed two lawsuits on April 26, 2022, and two more the 

next day, on April 27, 2022. When frivolous filings are received and 

addressed by a court, it impinges on the court’s limited resources, and a 

court has a responsibility to ensure its resources are allocated in a manner 

to promote the interests of justice. See Martin v. Dist. of Columbia Court of 

Appeals, 506 U.S. 1, 3 (1992) (per curiam) (“Every paper filed with the Clerk 

of this Court, no matter how repetitious or frivolous, requires some portion 

of the institution’s limited resources. A part of the Court’s responsibility is 

to see that these resources are allocated in a way that promotes the interests 

of justice.”) (quoting In re McDonald, 489 U.S. 180, 184 (1989) (per 

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curiam)); see also Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)

(review of a trial court’s sanctions against vexatious or harassing litigants is 

addressed under the lenient standard of abuse of discretion standard) (citing 

Gelabert v. Lynaugh, 894 F.2d 746, 747 (5th Cir. 1990) (per curiam)); 

Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986) (Pro 

se litigants have “no license to harass others, clog the judicial machinery with 

meritless litigation, and abuse already overloaded court dockets.”). Spivey is 

advised that her frivolous filings in this Court are an abuse of this Court’s 

limited resources. Therefore, Spivey is warned that if she continues 

to file frivolous pro se cases in this Court, sanctions and/or a 

filing bar may be imposed.

Conclusion

For the reasons stated, the Court should DISMISS Case Numbers 

3:22-cv-923-X-BT and 3:22-cv-936-S-BT without prejudice. 

SO RECOMMENDED.

June 3, 2022. 

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). To be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the 

objection, and specify the place in the magistrate judge’s report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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