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

NORTHERN DIVISION

SANGERNETTA MASON, :

Plaintiff, :

vs. : CIVIL ACTION 10-0069-CG-M

ASPLUNDH, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, filed a Complaint and a

Motion to Proceed Without Prepayment of Fees. (Docs. 1, 3).

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 non-dispositive

pretrial matters, 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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The federal courts’ electronic records, PACER, reflect that

Plaintiff previously has filed other actions, namely, Mason v.

United States of America, CA 08-0185-HSO-JMR (S.D. Miss. Aug. 5,

2008) (summary judgment was granted for Defendant on Plaintiff’s

FTCA claim for her father’s death at the VA), appeal filed (Oct.

5, 2009 and appellate fee paid), and Mason v. Fitts, et al., CA

08-0280-CG-B (S.D. Ala. Apr. 7, 2009) (a settlement was reached

for the seizure of Plaintiff’s wheelless car on blocks from

private property). In addition to filing the present action,

Plaintiff has pending on this Court’s docket, Mason v. United

States of America, et al., CA 09-0736-WS-M (S.D. Ala.) (claim

against VA for prescribing Zyrprexa which caused Plaintiff’s

pancreatitis).

On another note, Plaintiff has been named as a Defendant in

two actions brought by her sibling, Melvin Mason v. Cassady, et

al., CA 07-0601-KS (S.D. Ala. Aug. 20, 2008), and Melvin Mason v.

Cassady, et al., CA 09-0156-LG-JMR (S.D. Miss.) (pending). 

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recommended that Plaintiff’s action be dismissed without

prejudice for lack of subject matter jurisdiction.2

I. Complaint. (Doc. 1). 

Plaintiff indicates in her Complaint that she is a citizen

of Alabama and her permanent residence is in Selma, Alabama,

although she provides a Georgetown, Guyana, address for her

mailing address. (Doc. 1 at 4, 6). She further indicates on the

civil cover sheet that the basis for the Court’s subject matter

jurisdiction is diversity of citizenship jurisdiction. (Id. at

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Later in the Complaint, Plaintiff alleges that either

“Defendant Asplundh or Defendant City of Selma or both willfully

and recklessly caused a tree which they were cutting to fall on

Plaintiff[’s] home.” (Doc. 1 at 4).

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6). 

The Defendants identified by Plaintiff are Asplundh and the

City of Selma. (Id. at 1). Plaintiff reports that both

Defendants are incorporated in Alabama.

Plaintiff alleges that her home in Selma, Alabama, was

damaged when Defendant Asplundh was negligent in cutting a tree

on Defendant City of Selma’s property causing the tree or its

branches to hit her home, which is located next to city property. 

(Id. at 1).3 Defendant Asplundh is alleged to have been hired by

Defendant City of Selma to cut the tree. 

When Plaintiff returned home on February 7, 2008, she saw “a

stump of the tree still protruding over [her] property.” (Id. at

1). No work was performed on the tree for the five to six days

while she was home. However, when she returned in April, further

cutting had been done. Then, in June after several rains, the

ceiling fell. She put a tarpaulin on her roof for protection

from the continuing rains, but the wind blew it off causing her

to replace it. In August mold began to grow in her home, and

rodents were using the tree stump to get into her home. She

moved from her home which has caused her to pay rent as well as

her mortgage for over a year. 

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Plaintiff seeks damages in the amount for $250,000 from both

Defendants for damage to her home and personal property, for

Defendant Asplundh’s refusal to repair her home, for her

displacement, and for mental and physical pain. (Id. at 3).

II. Analysis.

In screening Plaintiff’s Complaint, it is apparent that the

Court lacks diversity of citizenship jurisdiction over her

Complaint. The Court arrived at this conclusion after reviewing

her pro se complaint with leniency because it was not drafted by

an attorney. GJR Investments, Inc. v. County of Escambia, Fla.,

132 F.3d 1359, 1369 (11th Cir. 1998). However, “this leniency

does not give a court license to serve as de facto counsel for

[plaintiff] or to rewrite an otherwise deficient pleading in

order to sustain an action.” Id. (citations omitted).

The Court’s first consideration is to inquire into whether

it has jurisdiction. United States v. Denedo, ___ U.S. ___,

____, 129 S.Ct. 2213, 2219, 173 L.Ed.2d 1235 (2009). Plaintiff

asserts that diversity of citizenship jurisdiction is the basis

for the Court’s jurisdiction over her action. Congress granted

courts this jurisdiction when it enacted 28 U.S.C. § 1332, which

authorizes the federal district court to have “original

jurisdiction of all civil actions where the matter in controversy

exceeds the sum or value of $75,000, exclusive of interest and

costs, and is between . . . citizens of different States . . . .” 

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28 U.S.C. § 1332(a)(1)(2005). 

Plaintiff indicates that both Defendants are citizens of

Alabama and that she is a citizen of Alabama. (Doc. 1 at 1). 

Diversity of citizenship jurisdiction, however, is destroyed by

the mere presence of one non-diverse defendant. Wisconsin Dept.

of Corrections v. Schacht, 524 U.S. 381, 388, 118 S.Ct. 2047,

2052-53 (1998). Inasmuch as all of the parties are identified as

being citizens of Alabama, the Court finds that it does not have

diversity of citizenship jurisdiction over Plaintiff’s action due

to the failure to establish that both Defendants are citizens of

a state other than Alabama. “[O]nce a court determines that

there has been no [jurisdictional] grant that covers a particular

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).

III. Conclusion.

Accordingly, based upon the foregoing reason, it is

recommended that Plaintiff’s action be dismissed without

prejudice for lack of subject matter jurisdiction.

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 fourteen days of the date of service

of this document, file specific written objections with the clerk

of court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar

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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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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 days4

 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 action 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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DONE this 13th day of April, 2010. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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