1The predecessor to this section is 28 U.S.C. § 1915(d). Even though Congress made many

substantive changes to § 1915(d) when it enacted 28 U.S.C. § 1915(b)(2)(B), the frivolity and the

failure to state a claim analysis contained in Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SULLIVAN WILKERSON, :

Plaintiff, :

vs. : CIVIL ACTION 04-0787-CG-C

DEPARTMENT OF HUMAN :

RESOURCES,

:

Defendant. 

REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, filed a handwritten complaint commencing this

action and paid the $150.00 filing fee after being denied leave to proceed in forma pauperis

(Docs. 3 & 4). This action has been referred to the undersigned for appropriate action

pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.2(c)(1). After review of the Court

file and the complaint, it is the undersigned’s recommendation that this action be dismissed

with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii), as Plaintiff’s claim

is frivolous, fails to state a claim upon which relief can be granted, and because the claim

seeks monetary relief against a defendant who is immune from such relief.

I. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B)1.

Case 1:04-cv-00787-CG-C Document 7 Filed 05/19/05 Page 1 of 13
L. Ed. 2d 338 (1989), was unaltered. See Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.), cert.

denied, 534 U.S. 1044, 122 S. Ct. 624, 151 L. Ed. 2d 545 (2001); Brown v. Bargery, 207 F.3d 863,

866 n.4 (6th Cir. 2000). However, dismissal under § 1915(e)(2)(B) is now mandatory. Bilal, 251

F.3d at 1348-49.

2

Although Plaintiff has been denied in forma pauperis status, this Court is reviewing

Plaintiff’s complaint, as it is apparent that it is frivolous and fails to state a claim upon

which relief may be granted. See Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002)

(applying § 1915(e) to non-prisoner actions); see also McGore v. Wrigglesworth, 114 F.3d

601, 608-9 (6th Cir. 1997) (“Even if a non-prisoner pays the filing fee and/or is represented

by counsel, the complaint must be screened under § 1915(e)(2)...Section 1915(e)(2)

provides us with the ability to screen these, as well as prisoner cases that satisfy the

requirements of this section...The complaint must be dismissed if it falls within the

requirements of § 1915(e)(2) when filed.”). Further, a claim may be reviewed pursuant to §

1915(e)(2), “[n]otwithstanding any filing fee, or any portion thereof, that may have been

paid...” 28 U.S.C. § 1915(e)(2).

 Under § 1915(e)(2)(B)(i), a claim may be dismissed as “frivolous where it lacks an

arguable basis in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827,

1831-32, 104 L. Ed. 2d 338 (1989). A claim is frivolous as a matter of law where, inter

alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to

enforce a right which clearly does not exist, id., or there is an affirmative defense that

would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons &

Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990). Judges are accorded “not only the

Case 1:04-cv-00787-CG-C Document 7 Filed 05/19/05 Page 2 of 13
3

authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but

also the unusual power to pierce the veil of the complaint's factual allegations and dismiss

those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327, 109

S.Ct. at 1833; see also Williams v. Sec’y for the Dep’t of Corr., No. 04-14328, 2005 WL

1130351, * 4 (11th Cir. May 13, 2005) (“...[T]he plain language of § 1915(e)(2)(B)(i)

explicitly provides that the district court is required to ‘dismiss the case at any time if the

court determines ... the action ... is frivolous.’”) (citations omitted). Moreover, a complaint

may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon

which relief may be granted “only if it is clear that no relief could be granted under any set

of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding,

467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984) (citing Conley v. Gibson,

355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957)); see Mitchell v. Farcass, 112

F.3d 1483, 1490 (11th Cir. 1997) (noting that § 1915(e)(2)(B)(ii)’s language tracks the

language of Fed.R.Civ.P. 12(b)(6)). Additionally, a complaint may be dismissed under 28

U.S.C. § 1915(e)(2)(B)(iii) if it “seeks monetary relief against a defendant who is immune

from such relief.” 

II. Complaint.

 Plaintiff has filed a handwritten complaint which does not convey a clear picture of

his claims. (Doc. 1, Complaint). Thus, the Court is placed in the position of attempting to

discern the nature of Plaintiff’s action. Plaintiff does not state the name of the entity or

individual against whom he is asserting his claim, however, the Court has determined, based

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2According to Plaintiff, Ms. Pugh is now 31 years of age. (Doc. 1 at 1). 

4

upon the complaint and the motion to proceed without prepayment of fees, that Plaintiff

intends for this action to be against the Alabama Department of Human Resources

(“DHR”). Further, Plaintiff has failed to identify the basis on which he is invoking the

Court’s subject matter jurisdiction. 

In his complaint, Plaintiff alleges that he has paid child support for an individual

named Angela Pugh2 since before 1977, and that in addition, during this time, DHR would

also take his income tax each year. (Doc. 1). This, according to Plaintiff, has caused him

to suffer financially for over 30 years. (Id.). Plaintiff goes on to state that “[t]hey order me

in for 3,753.41 this year.” (Id. at 1). Subsequently, Plaintiff apparently paid $525.00 for a

DNA test which excluded him as the father of Angela Pugh. (Id.). On July 15, 2004,

Plaintiff went to “court” but was unable to see “the judge.” (Id. at 2). He claims that he was

ordered to take (and pay for) another DNA test, which also indicated that Plaintiff was not

the father of Angela Pugh. (Id.). According to Plaintiff, the action against him was

dismissed on October 19, 2004, based upon the results of the DNA tests. As for requested

relief, Plaintiff states only that he believes that he is entitled to a “refund.” (Id. at 3). 

III. Discussion. 

A. Eleventh Amendment Immunity

The Eleventh Amendment’s immunity “prohibits federal courts from entertaining

suits by private parties against States and their agencies.” Alabama v. Pugh, 438 U.S. 781,

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3Congress can abrogate Eleventh Amendment immunity where (1) “Congress ‘unequivocally

expressed its intent to abrogate’ the States’ sovereign immunity in the statute at issue and (2) ‘Congress

acted pursuant to a valid grant of constitutional authority.’” Association for Disabled Americans, 

2005 WL 768129 at 1 (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S. Ct. 631,

640, 145 L. Ed. 2d 522 (2000)). 

5

781, 98 S. Ct. 3057, 3057, 57 L. Ed. 2d 1114 (1978); see also Association for Disabled

Americans v. Florida International University, No. 02-10360, 2005 WL 768129, *1 (11th

Cir. April 6, 2005) (“The Eleventh Amendment grants States immunity to suits brought by

private citizens in federal court.”); Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003)

(“It is also well-settled that Eleventh Amendment immunity bars suits brought in federal

court when the State itself is sued and when an ‘arm of the State’ is sued.”) (quoting Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S. Ct. 568, 50 L. Ed.

2d 471 (1977)); and McClendon v. Georgia Dep’t of Cmty. Health, 261 F.3d 1252, 1256

(11th Cir. 2001) (noting that the Eleventh Amendment is “a recognition that states, though

part of a union, retain attributes of sovereignty, including immunity from being compelled

to appear in the courts of another sovereign against their will.”). DHR is an agency of the

State of Alabama. Ala. Code § § 38-2-1 through 38-2-13 (1975). As an agency of the

state, DHR is entitled to the Eleventh Amendment’s immunity unless the state has waived

its immunity or Congress has abrogated the state’s immunity. Carr v. City of Florence,

Ala., 916 F.2d 1521, 1524 (11th Cir. 1990). There is no indication that Congress has

abrogated the State of Alabama’s immunity in this case.3 Furthermore, Alabama has not

waived its Eleventh Amendment immunity. Pugh, 438 U.S. at 782, 98 S. Ct. at 3057-58

Case 1:04-cv-00787-CG-C Document 7 Filed 05/19/05 Page 5 of 13
6

(finding Article I, § 14, of the Alabama Constitution prohibits Alabama from giving its

consent and therefore the State of Alabama and the ADOC’s predecessor, the Board of

Corrections, were entitled to Eleventh Amendment immunity); Lancaster v. Monroe

County, Ala., 116 F.3d 1419, 1429 (11th Cir. 1997) (holding Alabama has not waived its

Eleventh Amendment immunity); see also Liedel v. Juvenile Court of Madison County,

Ala., 707 F. Supp. 486 (N.D. Ala. 1989) (holding that the Alabama Department of Human

Resources was a state agency with Eleventh Amendment immunity). 

B. Subject Matter Jurisdiction

Even if DHR were not entitled to Eleventh Amendment immunity, this Court lacks

subject matter jurisdiction over this matter. A federal district court is a court of limited

jurisdiction. Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S. Ct. 1673,

1675, 128 L. Ed. 2d 391 (1994). That is, a federal district court is authorized to hear only

certain actions that the Constitution or Congress has authorized it to hear. Id. “It is to be

presumed that a cause lies outside this limited jurisdiction, . . . , and the burden of

establishing the contrary rests upon the party asserting jurisdiction, . . . .” Id. (citations

omitted). A plaintiff invoking a federal court’s jurisdiction must establish this jurisdiction

in the complaint. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). Not only must

the jurisdictional provision be stated in the complaint, but facts “demonstrating the

existence of jurisdiction” must be stated. Id.; see Kirkland Masonry, Inc. v. Comm’r, 614

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4The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc), adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to October

1, 1981.

7

F.2d 532, 533 (5th Cir. 1980).4 

Because a court is powerless to act beyond its grant of subject matter jurisdiction, a

court is obligated to raise whether it has subject matter jurisdiction at any time during the

litigation. Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). When a court

discovers that it lacks jurisdiction over a case, “the court’s sole remaining act is to dismiss

the case for lack of jurisdiction.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261

(11th Cir. 2000) (citing University of South Alabama v. American Tobacco Co., 168 F.3d

405, 409-10 (11th Cir. 1999)); Barnett v. Bailey, 956 F.2d 1036, 1039 (11th Cir. 1992).

As noted above, Plaintiff has failed to identify the basis on which he is invoking the

Court’s subject matter jurisdiction. This failure to identify the basis on which he is

invoking the Court’s subject matter jurisdiction is sufficient reason for the Court to

dismiss his action for lack of subject matter jurisdiction. Kirkland Masonry, Inc. v.

Comm’r, 614 F.2d 532, 533 (5th Cir. 1980) (“If jurisdiction is based on the existence of a

federal question, the jurisdictional allegation should state that the action arises under a

particular statute or provision of the Constitution and the body of the complaint must state

facts showing that the case does in fact arise under federal law.”); see Taylor v. Appleton,

30 F.3d 1365, 1367 (11th Cir. 1994) (same). That is “[t]he presence or absence of federalquestion jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that

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5Rule 8(a) requires that a complaint “contain (1) a short and plain statement of the ground upon

which the court’s jurisdiction depends..., (2) a short and plain statement of the claim showing that

[plaintiff] is entitled to relief [from the defendant], and (3) a demand for judgment for the relief [plaintiff]

seeks.”

federal jurisdiction exists only when a federal question is presented on the face of the

plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392,

107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987); Fed. R. Civ. P. 8(a).5 

Even though the Court is required to liberally construe a pro se litigant’s pleadings,

the Court does not have “license to serve as de facto counsel for a party . . ., or to re-write

an otherwise deficient pleading in order to sustain an action. . . .” GJR Investments, Inc. v.

County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). Notwithstanding, after

examining the Plaintiff’s allegations in the amended complaint, the Court finds Plaintiff’s

allegations do not satisfy two of the most commonly invoked bases for jurisdiction, federal

question jurisdiction and diversity of citizenship jurisdiction. 

Furthermore, a federal district court lacks subject matter jurisdiction to review a

final judgment of a state court. District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 482-87, 103 S. Ct. 1303, 1315-17, 75 L. Ed. 2d 206 (1983); see Rooker v.

Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S. Ct. 149, 150, 68 L. Ed. 2d 362 (1923). 

This rule of law is known as the Rooker-Feldman doctrine. Jones v. Crosby, 137 F.3d

1279, 1279 (11th Cir.), cert. denied, 523 U.S.1041, 118 S. Ct. 1351, 140 L. Ed. 2d 499

(1998). The Rooker-Feldman doctrine precludes a federal district court from reviewing

federal issues that were raised in state court proceedings, federal issues that should have

been raised in state court proceedings, and federal issues that are “inextricably intertwined”

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with a state court’s judgment. Feldman, 460 U.S. at 487 n.16, 103 S. Ct. 1317 n.16. 

According to the Rooker-Feldman doctrine, “a United States

District Court has no authority to review final judgments of a

state court in judicial proceedings. Review of such judgments

may be had only in [the United States Supreme Court].” 

District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 482, 103 S. Ct. 1303, 1315, 75 L. Ed. 2d 206 (1983). 

The doctrine has two statutory bases: (1) 28 U.S.C. § 1257,

which limits federal review of state court proceedings to the

United States Supreme Court, and (2) 28 U.S.C. § 1331, which

provides that federal district courts are courts of original

jurisdiction. See Rooker v. Fidelity Trust Co., 263 U.S. 413,

415-16, 44 S. Ct 149, 150, 68 L. Ed. 362 (1923). The

doctrine applies not only to claims actually raised in the state

court, but also to claims that were not raised in the state court

but are “inextricably intertwined” with the state court’s

judgment. Feldman, 460 at 482 n.16, 103 S. Ct. at 1315 n.16. 

This Court has recognized an “important limitation” on the

Rooker-Feldman doctrine when the plaintiff had no “reasonable

opportunity to raise his federal claim in state proceedings.” 

Wood v. Orange County, 715 F.2d 1543, 1547 (11th Cir.

1983), cert. denied, 467 U.S. 1210, 104 S. Ct. 2398, 81 L. Ed.

2d 355 (1984). In that situation, we consider that the federal

claim was not “inextricably intertwined” with the state court’s

judgment. Id.

. . . .

Even if the federal court collateral attack on the state court

judgment is premised on the unconstitutionality of a federal

statute, the Rooker-Feldman doctrine still applies. It still

applies for reasons that go to the heart of our system of

federalism—the dual dignity of state and federal court

decisions interpreting federal law. “In our federal system, a

state trial court’s interpretation of federal law is no less

authoritative than that of the federal court of appeals in whose

circuit the trial court is located.” Lockhart v. Fretwell, 506

U.S. 364, 376, 113 S. Ct. 838, 846, 122 L. Ed. 2d 180 (1993)

(Thomas, J. concurring). Moreover, the doctrine is not limited

to states appellate court judgments. A litigant may not escape

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application of the doctrine by merely electing not to appeal an

adverse state trial court judgment. 

Powell v. Powell, 80 F.3d 464, 466-67 (11th Cir. 1996). 

 Plaintiff complains that he is entitled to a refund of funds which he has expended as

a result of the entry of state court decrees regarding child support payments which Plaintiff

should not have made, as the child was not his biological child. The Court finds that in this

action, Plaintiff, in his quest for a refund of past child support payments and other related

expenses, is challenging at least one state court final judgment, and, as noted previously,

this Court lacks subject matter jurisdiction to review a final judgment of a state court. 

Feldman, 460 U.S. at 482-87, 103 S. Ct. at 1315-17; Rooker v. Fidelity Trust Co., 263

U.S. at 415-16, 44 S. Ct. at 150. 

Moreover, Plaintiff cannot avail himself of the exception to the Rooker-Feldman

doctrine found in Wood, supra, 715 F.2d at 1547, which allows a person to proceed in

federal district court if he was not given a reasonable opportunity in a state court

proceeding to raise his federal claim. Plaintiff appears to have been involved in at least one

state court proceeding at the time the results of the paternity tests indicated that he was not

the father of the child for whom he had paid child support for a number of years pursuant to

a state court order. Plaintiff had the opportunity at that time to raise this claim, or could

have filed a new action in state court regarding his claim. Because Plaintiff either raised or

had the opportunity to raise this issue in state court, Plaintiff’s action does not come within

the Wood exception to the Rooker-Feldman doctrine. Therefore, the Court finds that

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Plaintiff’s action is a collateral attack on the final judgment entered in the state court action

regarding the child support payments of Angela Pugh. See Sherman v. Marion County

Child Support Division, 224 F. Supp. 2d 1220 (S.D. Ind. 2002) (holding that plaintiff’s

claim challenging paternity and child support decision of state court was barred by RookerFeldman doctrine). 

 IV. Conclusion.

Based upon the foregoing reasons, it is recommended that this action be dismissed

with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii), and (iii) because Plaintiff’s

claims are frivolous, fail to state a claim upon which relief can be granted, and are asserted

against an immune defendant.

The attached sheet contains important information regarding objections to the 

Report and Recommendation. 

DONE this 19th day of May, 2005.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE’ S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within ten days

of the date of service of this document, file specific writtenobjections withthe clerk of court. Failure to do

so will bar a de novo determinationby the district judge of anything in the recommendation and will bar an

attack, onappeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v.

Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings and recommendations of the magistrate judge

is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A partymayobject to a recommendationentered by a magistrate judge in a dispositive matter, that

is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a “Statement of Objection to

Magistrate Judge’s Recommendation” within ten days after being served with a copy of the

recommendation, unless a different time is established by order. The statement of objection shall

specify those portions of the recommendation to which objection is made and the basis for the

objection. The objecting party shall submit to the district judge, at the time of filing the objection,

a brief setting forth the party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the

original brief submitted to the magistrate judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief in support of the objection. Failure to

submit a brief in support of the objection may be deemed an abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to aCourt ofAppeals; only the district

judge’s order or judgment can be appealed.

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2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915 and

Fed. R. Civ. P. 72(b), the magistrate judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to thisrecommendation, but unable to pay

the fee for a transcript, is advised that a judicial determination that transcription is necessary is required

before the United States will pay the cost of the transcript.

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