1

Section 1915(e)(2)(B) provides:

(2) Notwithstanding any filing fee, or any portion thereof, that

may have been paid, the court shall dismiss the case at any time if

the court determines that -- 

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LINDA CONE SELENSKY, :

Plaintiff, :

vs. : CIVIL ACTION 10-0041-WS-C

JUDGE MATTHEW GREEN, :

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, filed a complaint and a motion to proceed

without prepayment of fees pursuant to the Court’s order. Plaintiff’s motion to proceed

without prepayment of fees 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). Local Rule 72.2(c)(1)

provides for the automatic referral of a non-dispositive pretrial matter, such as plaintiff’s

motion to proceed without prepayment of fees, to a Magistrate Judge. The consideration

of this motion requires the Magistrate Judge to screen plaintiff’s complaint pursuant to 28

U.S.C. § 1915(e)(2)(B). Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002)

(applying § 1915(e) to non-prisoner actions).1

 After screening the complaint, it is

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(A) the allegation of poverty is untrue; or

(B) the action or appeal –

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be

granted; or

(iii) seeks monetary relief against a defendant who

is immune from such relief.

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recommended that plaintiff’s action be dismissed without prejudice for lack of subject

matter jurisdiction. 

I. Nature of Proceedings.

Plaintiff commenced this action by filing a “motion to file restraining order” (Doc.

1), which was treated as a motion for temporary restraining order and was denied. (Doc.

2). When this document was filed no filing fee was paid, no motion to proceed without

prepayment of fees was filed, and no complaint was filed. Noting these deficiencies,

among others, the Court ordered plaintiff to cure the noted defects. (Id.). Plaintiff

complied with the portion of the order requiring a complaint and a motion to proceed

without prepayment of fees be filed. (Docs. 3, 4). But she did not comply with the

portion of the order requiring that she identify the basis on which she contends that

subject matter jurisdiction exists. (Doc. 2). 

A review of plaintiff’s complaint reflects that it is void of any reference to a basis

on which plaintiff contends this Court has subject matter jurisdiction over her action. 

Plaintiff is aware that she must provide this in her complaint based on the Court’s prior

order in this action (Doc. 2) and her prior actions filed in this Court that were dismissed

Case 1:10-cv-00041-WS-C Document 5 Filed 04/09/10 Page 2 of 11
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The present action is related to matters found in Selensky v. Judge Whiddon, et al., CA

09-0592-CG-C, where plaintiff complained about her subsidized apartment’s conditions, the

removal of her animals, and future eviction proceedings. 

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for lack of subject matter jurisdiction, namely, Selensky v. Mobile Infirmary, CA 06-

0217-WS-M (S.D. Ala. June 12, 2006); Selensky v. State of Alabama, CA 08-0173-WSC (S.D. Ala. July 3, 2008); and Selensky v. Judge Whiddon, et al., CA 09-0592-CG-C

(S.D. Ala. Nov. 13, 2009)2

 (on appeal). In Selensky v. Mobile Infirmary, supra, plaintiff

received the Pro Se Litigant Manual, which is still available in Clerk’s Office, informing

her of the necessity to establish the Court’s subject matter jurisdiction in the complaint. 

In plaintiff’s two-page complaint (Doc. 3), she names as the sole defendant Judge

Matthew Green, a part-time municipal court judge in Mobile, Alabama. See

www.cityofmobile.org. Plaintiff alleges that on January 22, 2010, she was evicted from

her apartment with her belongings being put on the street and her animals being taken

away. (Doc. 3 at 4). Since her eviction she has spent nights in a post office and lived in a

tent in a park. (Id. at 3). Defendant allegedly presided over plaintiff’s eviction

proceedings (Doc. 1) and is alleged to have ruled on her appeal from his judgment, cited

her with contempt, treated her with disrespect, brought her back on charges on which she

had already be found guilty, made up his own rules to get his way, taken her rights away,

and threatened to put her in jail. (Id. at 2). Plaintiff wants a restraining order against

defendant “to protect [her] from further problems with [defendant].” (Id. at 3). 

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II. Analysis.

In screening plaintiff’s complaint, it is apparent that the Court lacks subject matter

jurisdiction over plaintiff’s action. The Court has arrived at this conclusion after giving

her complaint a liberal construction. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,

595-596 (1972).

The Court’s first consideration is to inquire into its jurisdiction, United States v.

Denedo, ___ U.S. ___, ____, 129 S.Ct. 2213, 2219, 173 L.Ed.2d 1235 (2009), because a

federal district court has limited jurisdiction to hear only certain types of actions

authorized by the Constitution or Congress. Kokkonen v. Guardian Life Ins. Co., 511

U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). This inquiry is made at

“the earliest stage in the proceedings,” University of South Alabama v. American

Tobacco Co., 168 F.3d 405, 410 (11th Cir. 2000) (citations omitted), as the court cannot

act upon an action that is “beyond its statutory grant of subject matter jurisdiction.” 

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

A plaintiff is required in a federal civil action to set forth in the complaint the basis

for the Court’s subject matter jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th

Cir. 1994) (“[T]he pleader must affirmatively allege facts demonstrating the existence of

jurisdiction and include a short and plain statement of the grounds upon which the court’s

jurisdiction depends.”); Kirkland Masonry, Inc. v. Comm’r, 614 F.2d 532, 533 (5th Cir.

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The 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.

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1980) (same).3 Plaintiff has not done this. In scouring the complaint to find language

that would support a jurisdictional basis, the Court could only find one reference that is

compatible with a jurisdictional basis, which is her allegation that she is disabled. (Doc. 3

at 2). The relevance of her disability is not explained, and the Court cannot discern its

relevance to this action. Therefore, her disability cannot be construed as possibly

providing jurisdiction.

Regardless of plaintiff’s shortcomings in pleading jurisdiction, her request for

injunctive relief against defendant is the reason that she has failed to establish this Court’s

subject matter jurisdiction. “Article III of the Constitution limits the jurisdiction of the

federal courts to the consideration of ‘Cases’ and ‘Controversies.’” Al Najjar v. Ashcroft,

273 F.3d 1330, 1335 (11th Cir. 2001) (citing U.S. CONST. ART., § 2). A plaintiff must

have a “‘personal stake in the outcome’ such as to ‘assure that concrete adverseness’ . . . . 

Abstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is

immediately in danger of sustaining some direct injury ‘ as the result of. . .official

conduct.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674

(1974). “Past exposure to illegal conduct does not in itself show a present case or

controversy regarding injunctive relief, however, if unaccompanied by any continuing,

present adverse effects.” Id. at 495-96, 94 S.Ct. at 676. “[P]ast wrongs are evidence

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bearing on whether there is a real and immediate threat of repeated injury.” Id. at 496, 94

S.Ct. at 676. 

For example, in O’Shea v. Littleton, supra, residents brought an action for an

injunction against a county magistrate and judge for their discriminatory practice of bond

setting, sentencing, and assessing jury fees in criminal cases. None of the plaintiffs were

serving an illegal sentence or were on trial or awaiting trial. Although some plaintiffs

may have been subject to unlawful practices in the past, id. at 495-96, 94 S.Ct. at 675-76,

the Supreme Court found that the prospect of plaintiffs in the future being charged with a

crime and appearing before either the magistrate or judge was speculation and conjecture. 

Id. at 497, 94 S.Ct. at 676. The Court reasoned that plaintiffs “will conduct their

activities within the law and so avoid prosecution and conviction as well as exposure to

the challenged course of conduct said to be followed by [defendants].” Id. at 497, 94

S.Ct. at 677. Therefore, the Court determined that the “case-or controversy requirement

[was not] satisfied by the general assertions or inferences that . . . [they] will be

prosecuted for violating valid criminal laws.” Id. Accordingly, the Court found that it

lacked subject matter jurisdiction.

In another relevant case, City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct.

1660, 75 L.Ed.2d 675 (1983), plaintiff was stopped for a traffic violation when an officer,

without justification, applied a “chokehold” to him which resulted in unconsciousness and

damage to his larynx. Plaintiff sought damages, declaratory relief, and an injunction

against the city to bar the use of “chokeholds” except where the immediate use of deadly

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 “Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11TH CIR. R. 36-2 (2005).

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force may be used. The Supreme Court concluded held that it lacked subject matter

jurisdiction because no case or controversy was demonstrated to satisfy the injunctive

relief sought. Id. at102, 103 S.Ct. at 1665. The Court was unable to find that the plaintiff

would be stopped for a violation in the future and be subjected to a “chokehold,” without

provocation. Id. at108, 103 S.Ct. at 1668. Because no showing was made that the

plaintiff was realistically threatened by the repetition of his prior experience, the Court

ruled that the plaintiff had not satisfied the requirements for seeking injunctive relief in

federal court. Id. at 109, 103 S.Ct. at1669. Furthermore, the Court found that “the

speculative nature of [the plaintiff’s] claim that he will again experience injury as the

result of that practice even if continued” precluded that Court from having subject matter

jurisdiction over the action. Id.

Then, in Eubank v. Leslie, 210 Fed.Appx. 837 (11th Cir. 2006) (unpublished),4

 the

plaintiff, who was indicted for driving under the influence, sued a judge, among others,

after his indictment was dismissed, for her orders requiring alcohol treatment. Plaintiff

sought an injunction against the judge. On appeal, the Eleventh Circuit Court of Appeals

affirmed the district court’s decision to dismiss the injunctive relief claim against the

judge. Id. at 845. The Court found that the plaintiff had failed to allege any threat or real

and immediate future harm, and they assumed, relying on Lyons, supra, that the plaintiff’s

future conduct would be law-abiding. Id. at 843. The Court further reasoned that a real

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and immediate threat of future injury was absent as the judge had been removed from

plaintiff’s case, and thus plaintiff would not be reappearing before the judge. Id. at 845.

In the present action, plaintiff does not allege any specific future harm from

defendant. Her only allegation about the future is that she seeks “a restraining order to

protect [her] from the further problems with [defendant].” (Doc. 3 at 4). Since plaintiff

has been evicted from her apartment, the Court cannot discern any future problems with

defendant based on the eviction. As the preceding cases have indicated, the Court is

permitted to assume that plaintiff will conduct herself in accordance with the law so she

will not have the opportunity to become involved with the municipal court system again. 

However, if she does, there are many other judges in the municipal court system, as

reflected on the website, so she may not appear before defendant again, and any future

involvement in the court system will not concern the same apartment or the same set of

facts. For the Court to anticipate an unidentified future harm would be mere speculation

and conjecture. Accordingly, the Court finds that there is not a present case or

controversy to support this Court’s subject matter jurisdiction over plaintiff’s injunctive

relief request against defendant Judge Matthew Green.

Furthermore, assuming plaintiff had standing to seek an injunction, injunctive

relief would not issue in this action because plaintiff has not met the criteria. See Lyons,

461 U.S. at 111, 103 S.Ct. at 1167; O’Shea, 414 U.S. at 503, 94 S.Ct. at 679. Before

injunctive relief can issue, its traditional equitable criteria must be met by the moving

party: “(1) [the movant] has a substantial likelihood of success on the merits; (2)

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The Court notes in passing the case of Brown v. Philadelphia Housing Auth., 350 F.3d

338 (3d Cir. 2003), where an appeal was dismissed as moot due to the plaintiffs’ tenancies being

terminated. Id. at 341. In finding that it lacked subject matter jurisdiction, the Third Circuit

Court of Appeals reversed the district court and directed the district court to vacate the consent

decree and dismiss the case. Id. at 347-48.

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irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to

the movant outweighs whatever damage the proposed injunction may cause the opposing

party; and (4) if issued, the injunction would not be adverse to the public interest.” 

United States v. Endotec, Inc., 563 F.3d 1187, 1194 (11th Cir. 2009) (quotation marks

and citation omitted). Here, plaintiff has not alleged and has not demonstrated that she

will suffer an irreparable injury unless injunctive relief issues. Having failed to meet one

of the criteria for injunctive relief, plaintiff’s request for an injunction would be denied. 

United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (ruling the

movant bears the burden of persuasion on each of the four factors).

III. Conclusion.

Based upon the foregoing reason, it is recommended that plaintiff’s action be

dismissed without prejudice for lack of subject matter jurisdiction.5

The instructions that follow the undersigned’s signature contain important

information regarding objections to the report and recommendation of the Magistrate 

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Judge.

DONE this 9th day of April, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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 Effective December 1, 2009, the time for filing written objections was extended to “14

days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 72(b)(2).

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation, or anything in it, must,

within fourteen days of the date of service of this document, file specific written objections with

the Clerk of this Court. Failure to do so will bar a de novo determination by the district judge of

anything in the recommendation and will bar an attack, on appeal, 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 party may object to a recommendation entered 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 days6 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 a Court of Appeals; only the

district judge's order or judgment can be appealed.

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 case are adequate for purposes of review. Any party planning to object to this

recommendation, 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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