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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

SYED MOHAMMED IQTIDAR 

HAIDER,

Plaintiff,

v. CASE NO. 1:10-cv-00176-SPM -GRJ

TERRY D JONES,

Defendant.

_____________________________/

ORDER DENYING LEAVE TO AMEND AND REPORT AND RECOMMENDATION

Before the Court is Plaintiff’s pro se Motion to File Proposed Third Amended

Complaint (Doc. 16). For the reasons set forth below, Plaintiff’s motion to file a third

amended complaint (Doc. 16) is DENIED. Further, from a review of the amended

complaint, it is evident that the Court lacks subject matter jurisdiction over the claim. 

Pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, this Court may, sua

sponte, dismiss an action if it determines that it lacks subject matter jurisdiction.

Accordingly, it is respectfully RECOMMENDED that this case should be DISMISSED.

I. Introduction

Plaintiff initiated this cause of action on September 2, 2010, by filing an

emergency complaint (Doc. 1), which he later amended and filed with an emergency

motion for temporary restraining order on September 10, 2010. (Docs. 5 and 6). The

only relief Plaintiff sought was to prevent Defendant Terry D. Jones from engaging in

his much publicized demonstration on September 11, 2010, at which he planned to

burn a large number of the Qur’an on his church property. 

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Plaintiff’s emergency motion was denied the day it was filed because Plaintiff did

not comply with the requirements of Fed. R. Civ. P. 65, in that he did not serve the

motion on Jones nor did he file a supporting affidavit as the rule required. (Doc. 7). 

Ultimately, Jones cancelled the event. Because the pleadings filed in this action

involved this one event and the only relief sought was to prevent this event, which did

not occur, the Court ordered Plaintiff to show cause as to why his lawsuit should not be

dismissed. (Doc. 10). Plaintiff responded to the Court’s show cause order on

November 17, 2010, to explain that he did not want his case dismissed. (Doc. 11). 

Plaintiff then filed a motion for leave to file a second amended complaint with an

attached proposed pleading. (Doc. 12). Plaintiff also filed two memoranda concerning

an event Jones planned for March 20, 2011, during which Jones planned to “judge” the

Qur’an in a mock trial. (Docs. 13 and 14). Neither memoranda sought any particular

relief regarding this event which has now passed as well. The Court denied Plaintiff

leave to file his proposed Second Amended Complaint (Doc. 12), noting that it

exceeded the maximum page limit and was not filed on the standard complaint form

required by this Court for pro se pleadings. (Doc. 15).

Plaintiff filed a motion to file his third amended complaint on April 15, 2011 (Doc.

16). Plaintiff again names Terry D. Jones as the Defendant, describing his claim as

“violation of the FIRST AMENDMENT by Terry D. Jones.” Plaintiff seeks relief in the

form of (1) a hearing where he can “explain the First Amendment in the light of the

verses of Qur’an”’, (2) permission “to submit more reliefs if the court accepts

explanation of The First Amendment”, and (3) that the city manager, sheriff, Ed Crapo,

the police chief, and the chief of Gainesville Fire present records of Dove Church

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Outreach Center. (Doc. 16).

In his statement of facts, Plaintiff alleges the following: On July 7, 2009, Dove

World Outreach Center displayed a sign with the words “ISLAM IS OF THE DEVIL.” 

The sign was later reduced in size after intervention by the Gainesville Code

Enforcement Office. Plaintiff alleges that Jones stated that Islam “is a violent and

oppressive religion,” Dove World Outreach Center was spreading the message of Jesus

Christ, and the first sign would not be the last. A year later, on July 5, 2010, followers of

Jones protested at the Islamic Center of Gainesville, wearing t-shirts that said “Islam is

of the Devil” and carrying various signs related to Islam, terrorism, and Christianity. On

July 12, 2010, Jones announced an “International Burn a Koran Day” to be held on the

ninth anniversary of the September 11, 2001 terrorist attacks. Another sign was

erected on the property of the Dove World Outreach Center announcing

“INTERNATIONAL BURN A KORAN DAY, 9/11/2011, 6 PM - 9 PM.” On August 3,

2010, Gainesville Mayor Craig Lowe asked the global press to ignore Jones. Plaintiff

alleges that as a result of Jones’ invitations to others to participate in burning the

Qur’an, illegal activities occurred, including the defacement of a sign on Dove World

Outreach Center property, and the deaths of two people and injury of four others during

Afghanistan protests against Jones. On September 11, 2010, Jones announced that

his church would not burn the Qur’an.

In January 2011, more signs were erected on the property of Dove World

Outreach Center, including one that read “INTERNATIONAL JUDGE THE KORAN DAY

MARCH 20 , 2011 6 PM” and others that read “BURN IT, DROWN IT, SHRED IT,

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SHOOT IT.” On February 22, 2011, Plaintiff contends that he met with the mayor to

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explain the consequences of the event. On March 20, 2011, the “Qur’an was put on

trial in the court of Terry Jones. He found Qur’an guilty of causing murder, rape [and]

terrorism and ordered to burn it.” (Doc. 16). The church subsequently burned the

Qur’an, which drew international criticism. On April 21, 2011, Plaintiff “was disturbed

and saddened about the innocent UN officials [and] other deaths.” Finally, Plaintiff

alleges that Jones threatened Muslims in America when said that Muslims are welcome

in America but must obey the Constitution. (Doc. 16).

II. Discussion

A. Motion for leave to amend

Pursuant to Rule 15, Federal Rules of Civil Procedure, a party may amend once

as a matter of course. Future amendments require leave of the court. However, courts

can deny leave to amend when the amendment would be futile. Such an amendment is

“futile” if it is clearly insufficient or frivolous. See, e.g., Karpeeva v. United States Dep’t

of Homeland Sec. Citizenship and Immigration Services, 2011 U.S. App. LEXIS 13197,

*10-11 (11 Cir. 2011) (unpublished opinion); Bryant v. Dupree, 252 F.3d 1161, 1163 th

(11 Cir. 2001); Cockrell v. Sparks, 510 F.3d 1307, 1310 (11 Cir. 2007). As set forth th th

below, granting leave to amend would be futile because (1) Plaintiff’s claim is frivolous;

and (2) Plaintiff lacks standing and therefore this Court lacks subject-matter jurisdiction

over the claim.

B. Frivolity

Frivolous claims include claims based on meritless legal theories and claims with

clearly baseless factual contentions. Neitzke v. Williams, 490 U.S. 319, 317 (1989)

(applying §1915). This circuit has defined a frivolous claim as being “without arguable

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merit.” Harris v. Menendez, 817 F.2d 737, 739 (11th Cir.1987) (quoting Watson v. Ault,

525 F.2d 886, 892 (5th Cir.1976)). “Arguable means capable of being convincingly

argued. An action or claim in which ‘the plaintiff’s realistic chances of ultimate success

are slight’ is not one capable of being convincingly argued.” Moreland v. Wharton, 899

F.2d 1168, 1170 (11th Cir.1990), quoting Menendez, 817 F.2d at 740 n. 5. 

Plaintiff’s complaint falls squarely within the definition of frivolous. Plaintiff

asserts a cause of action under 28 U.S.C. § 1983 claiming merely “ a violation of

the First Amendment by Terry D. Jones.” (Doc. 16). Plaintiff appears to allege not

that his ow n First Amendment rights w ere violated, but that Jones, in the course of

exercising his First Amendment rights, expressed himself in w ays that Plaintiff

contends are outside the scope of First Amendment protection. The First

Amendment grants rights and cannot be invoked by a private citizen to curtail

speech he finds disagreeable. Specifically, Plaintiff appears to make an argument in

his statement of facts that Jones’ expressive conduct incited illegal action. Plaintiff

appears to be invoking the “ imminent law less action” standard w hereby states

cannot punish speech advocating the use of force or law unless that speech “ is

directed to inciting or producing imminent law less action and is likely to incite or

produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). This

standard is inapplicable to the current case. Plaintiff does not allege that the

government infringed on an individual’s speech rights.

Further, a successful §1983 action requires a plaintiff to show that he was

deprived of a federal right by a person acting “under color of state law.” Harvey v.

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Harvey, 949 F.2d 1127, 1130 (11 Cir. 1992)(citing Flagg Brothers, Inc. v. Brooks, 436 th

U.S. 149, 155-56 (1978)). A person acts under color of state law when he acts with

authority possessed by virtue of his employment with the state. Edwards v. Wallace

Community College, 49 F.3d 1517, 1522 (11 Cir. 1995)(citing West v. Atkins, 487 U.S.

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42, 48-50 (1988)). “The dispositive issue is whether the official was acting pursuant to

the power he/she possessed by state authority or acting only as a private individual.” 

Id. at 1523 (citing Monroe v. Pape, 365 U.S. 167, 183-84 (1961)(overruled on other

grounds by Monell v. Department of Social Servs., 436 U.S. 658 (1978))). 

Although private individuals and entities may be held liable under §1983, such

persons must be jointly engaged with state officials in the prohibited conduct to

constitute acting under color of state law for purposes of the statute. Adickes v. Kress &

Co., 398 U.S. 144, 152 (1970). Private action may be deemed state action for §1983

purposes only when the challenged conduct may be "fairly attributable to the State."

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). 

To hold that private parties are acting under color of state law pursuant to 42

U.S.C. § 1983, a Plaintiff must prove one of the following three conditions: (1) that the

state has coerced or significantly encouraged the parties to violate the Constitution; (2)

the private parties performed a public function that was traditionally the exclusive

province of the State; or (3) the State had so far insinuated itself into a position of

interdependence with the private parties that it was joint participant in the enterprise. 

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

Plaintiff’s third amended complaint is devoid of any allegations that Jones acted

pursuant to state authority or he is a “state actor” who acted under “color of state law.” 

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Accordingly, in the absence of any facts suggesting that Jones’ actions were carried out

under color of state law, Plaintiff cannot proceed under § 1983. Further, in order to

allege a claim under § 1983, a plaintiff must allege facts supporting a violation of

Plaintiff’s federal constitutional rights. The third amended complaint contains absolutely

no mention that any of Plaintiff’s constitutional rights were violated. 

Because the flaw s in Plaintiff’s complaints are so numerous and so

fundamental, the Court concludes that granting Plaintiff a further opportunity to

amend w ould be futile and w ould simply be a further waste of scarce and valuable

judicial resources.

C. Standing

Notwithstanding Plaintiff’s failure to state a cognizable claim, this Court also

lacks subject matter jurisdiction to decide the case. Subject matter jurisdiction of

federal courts is limited by the U.S. Constitution to “cases” and “controversies” U.S.

const. Art. III, § 2. A justiciable controversy “must be definite and concrete, touching

the legal relations of parties having adverse legal interests. It must be a real and

substantial controversy admitting of specific relief through a decree of a conclusive

character, as distinguished from an opinion advising what the law would be upon a

hypothetical state of facts.” Aetna Life Ins. Co. of Hartford, Connecticut v. Haworth, 300

U.S. 227, 240-41 (1937) (citations omitted). “[T]he core component of standing is an

essential and unchanging part of the case-or-controversy requirement of Article III.” 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing is essentially a

question of “whether the litigant is entitled to have the court decide the merits of the

dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975).

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Plaintiffs invoking federal court jurisdiction must show “(1) an injury in fact,

meaning an injury that is concrete and particularized, and actual or imminent, (2) a

causal connection between the injury and the causal conduct, and (3) a likelihood that

the injury will be redressed by a favorable decision.” Tanner Adver. Group v. Fayette

County, 451 F.3d 777, 791 (11 Cir. 2006). Plaintiff’s third amended complaint (Doc. th

16) fails to allege any injury, actual or imminent, to the Plaintiff. Nor has he alleged the

type of “case” or “controversy” necessary to invoke this Court’s jurisdiction. Thus,

because Plaintiff does not have standing to bring a claim the case is due to be

dismissed because the Court does not have subject matter jurisdiction.1

III. Conclusion

Accordingly, upon due consideration, it is:

(1) ORDERED that Plaintiff’s Motion to File Third Proposed Amendment (Doc.

16) is DENIED.

(2) Respectfully RECOMMENDED that this case be DISMISSED, sua sponte, by

the Court for lack of subject matter jurisdiction, pursuant to Rule 12(h)(3) of the Federal

Rules of Civil Procedure and for failure to state a cause of action.

IN CHAMBERS at Gainesville, Florida this 15 day of July, 2011. th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Lastly, to the extent that Plaintiff is attempting to bring state claims, these claims cannot be

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brought in federal court because there is not complete diversity of citizenship between the Plaintiff and

Jones. Pursuant to 28 U.S.C. § 1332(a) there must be complete diversity among the parties in order for a

federal court to have diversity jurisdiction over an action. See, e.g., Palmer v. Hosp. Auth. of Randolph

Cnty., 22 F.3d 1559, 1564 (11 Cir. 1994). Because Plaintiff is a Florida resident and the Defendant is

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alleged to have a Florida residence, there is an absence of complete diversity of citizenship.

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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

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