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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

 PENSACOLA DIVISION

DOUGLAS MIHALIK,

Plaintiff,

vs. Case No. 3:10cv67/LAC/EMT

EXPRESSJET AIRLINES d/b/a 

CONTINENTAL EXPRESS

and GEORGE SEMAK,

Defendants.

___________________________________/

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, initiated this action by filing a civil complaint (Doc. 1). Plaintiff

paid the filing fee.

In his complaint, Plaintiff alleges Defendants knowingly made false material declarations

and submitted other false and misleading information to deceive the court in Mihalik v. Expressjet

Airlines d/b/a Continental Express, Case No. 3:04cv258/RV/EMT, an employment discrimination

case filed by Plaintiff in this court, which resulted in the grant of summary judgment in favor of

Expressjet Airlines on March 21, 2006 (see Doc. 1). Plaintiff claims that Defendants’ conduct

violated his Fourteenth Amendment rights to due process and a trial by jury (id. at 2). As relief, he

seeks “lost pay, earned benefits denied, restoration of all benefits associated with employment,

health, or retirement; statutory liquidated damages, reinstatement or front pay (i.e. loss of future

earnings), nominal damages, interest, including pre-judgment interest; attorney’s fees; costs; and any

other relief to which Plaintiff may be entitled” (id. at 11). 

A federal court must dismiss a case whenever it appears the court lacks subject matter

jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097

(2006). The absence of jurisdiction may be raised at any time during the case, and may be based on

the court’s review of the evidence. Id. A district court may address its lack of subject matter
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jurisdiction in two ways: the court may find insufficient allegations in the pleading, viewing the

alleged facts in the light most favorable to Plaintiff, similar to an evaluation pursuant to Rule

12(b)(6), or, after an evidentiary hearing, the court may weigh the evidence in determining whether

the facts support the jurisdictional allegations. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.

1999) (citations omitted). The burden is on the party asserting jurisdiction to demonstrate that

jurisdiction in fact exists. Id. at 654 (citing Thomas v. Gaskill, 315 U.S. 442, 446, 62 S. Ct. 673, 86

L. Ed. 2d 951 (1942)). 

A plaintiff properly invokes federal question jurisdiction under 28 U.S.C. § 1331 when he

pleads a colorable claim “arising under” the Constitution or laws of the United States. See Arbaugh,

546 U.S. at 513 (citing Bell v. Hood, 327 U.S. 678, 681–85, 66 S. Ct. 773, 90 L. Ed. 939 (1946)). 

A claim invoking federal-question jurisdiction under 28 U.S.C. § 1331 may be dismissed for want

of subject-matter jurisdiction if it is not colorable, that is, if it is “wholly insubstantial and

frivolous.” See Arbaugh, 546 U.S. at 513 n.10 (internal quotation marks and citations omitted);

Wyke v. Polk County School Bd., 129 F.3d 560, 566 (11th Cir. 1997); see also Baker v. Carr, 369

U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) (if jurisdiction is based on a federal question, the

plaintiff must show he has alleged a claim under federal law and that the claim is not frivolous). In

Hagans v. Lavine, the Supreme Court noted: “Over the years this Court has repeatedly held that the

federal courts are without power to entertain claims otherwise within their jurisdiction if they are

‘so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously

frivolous, plainly insubstantial, or no longer open to discussion.’” 415 U.S. 528, 536–37, 94 S. Ct.

1372, 39 L. Ed. 2d 577 (1974) (citations omitted). While emphasizing that this insubstantiality

threshold is a difficult one to meet, the Court concluded that the substantiality doctrine “remains the

federal rule and needs no reexamination.” Id. at 538. A claim is “insubstantial” and may be

dismissed if it “has no plausible foundation, or if the court concludes that a prior Supreme Court

decision clearly forecloses the claim.” Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347,

1352 (11th Cir. 1998) (quotation marks omitted). “The test of federal jurisdiction is not whether the

cause of action is one on which the claimant can recover. Rather, the test is whether the cause of

action alleged is so patently without merit as to justify the court’s dismissal for want of jurisdiction.” 

Case No.: 3:10cv67/LAC/EMT
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McGinnis v. Ingram Equip. Co., Inc., 918 F.2d 1491, 1494 (11th Cir. 1990) (en banc ) (quotation

marks and ellipsis omitted). 

In the instant case, Plaintiff invokes subject-matter jurisdiction under 28 U.S.C. § 1331,

claiming that Defendants violated his rights to due process and a fair trial under the Fourteenth

Amendment (see Doc. 1 at 2). Under 42 U.S.C. § 1983, a plaintiff may sue a person who, while

acting under color of state law, deprived him of a constitutional right. 42 U.S.C. § 1983; Collier v.

Dickinson, 477 F.3d 1306, 1307 (11th Cir. 2007). However, to recover under Section 1983, a

plaintiff must show that the person who engaged in the allegedly unconstitutional conduct was

acting under color of state law. See 42 U.S.C. § 1983; Griffin v. City of Opa-Locka, 261 F.3d 1295,

1303 (11th Cir. 2001) (citation omitted). State action requires both an alleged constitutional

deprivation “caused by the exercise of some right or privilege created by the States or by a rule of

conduct imposed by the State or by a person for whom the State is responsible,” and that “the party

charged with the deprivation must be a person who may fairly be said to be a state actor.” Patrick

v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). This is a jurisdictional prerequisite. Nail

v. Community Action Agency of Calhoun County, 805 F.2d 1500, 1501 (11th Cir. 1986). If the

court concludes there is no state action, Plaintiff’s complaint must be dismissed. Rayburn ex rel.

Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001).

Only in rare circumstances may a private party be viewed as a state actor for § 1983

purposes. Rayburn, 241 F.3d at 1347. To hold that private parties are state actors, the court must

conclude that one of the following conditions is met: (1) the state coerced or at least significantly

encouraged the action alleged to violate the Constitution (state compulsion test); (2) the private

parties performed a public function that was traditionally the exclusive prerogative of the state

(public function test); or (3) the state had so far insinuated itself into a position of interdependence

with the private parties that it was a joint participant in the enterprise (nexus/joint action test). Id.

In the instant case, from the face of the complaint it is clear that Plaintiff’s claims are

frivolous. There was no state action involved in Expressjet Airlines and Mr. Semak’s defending the

employment discrimination lawsuit filed by Plaintiff. Therefore, Plaintiff’s allegations provide no

basis for a Fourteenth Amendment claim under § 1983 and are too insubstantial to raise a federal

question. Accordingly, Plaintiff’s complaint must be dismissed for lack of jurisdiction. See, e.g.,

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Austin v. City of Montgomery, No. 09-12558, 2009 WL 3807150, at *2 (11th Cir. 2009) (affirming

dismissal of § 1983 action for lack of jurisdiction where plaintiff alleged deprivation of rights under

Alabama Constitution, deprivation of due process and equal protection rights, deprivation of civil

rights under § 1983, and deprivation of rights against “abuse of process” and “abuse of discretion,”

but claims were “wholly without merit and too insubstantial to raise a federal question”)

(unpublished).1

Accordingly, it is respectfully RECOMMENDED:

That this action be DISMISSED for lack of jurisdiction and the clerk be directed to close

the file.

At Pensacola, Florida 4th day of March 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon all other parties. Failure to object may limit the scope of appellate review of

factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir.

1988).

1

 The undersigned cites Austin v. City of Montgomery only as persuasive authority and recognizes that the

opinion is not considered binding precedent. See 11th Cir. R. 36-2. 

Case No.: 3:10cv67/LAC/EMT