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CaseIQ

SWANSON v. ASHCROFT

United States District Court, N.D. Alabama, Southern Division

Mar 10, 2003

Judgment

CaseIQ

ORDER

SHARON LOVELACE BLACKBURN, United States District Judge

The court has before it the Complaint in this action, filed February 7, 2003, seeking relief and damages arising from his conviction and sentence in the United States District Court for the Eastern District of Virginia for criminal tax violations. This Order is entered sua sponte as to all defendants, except Leonard Birdsong, who has filed a Motion to Dismiss, (doc. 3).

The court may dismiss plaintiffs complaint, sua sponte, for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) when the allegations of a complaint are attenuated, unsubstantial, frivolous, devoid of merit, and/or no longer open to discussion. Hagans v. Lavine, 415 U.S. 528, 536-37 (1974); see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998)("Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974))).

The Hagans Court stated:

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," Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 (1904); "wholly insubstantial," Bailey v. Patterson, 369 U.S. 31, 33 (1962); "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910); "plainly unsubstantial," Levering Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); or "no longer open to discussion," McGilvra v. Ross, 215 U.S. 70, 80 (1909).

Id.

In this case, plaintiff is clearly attacking his conviction and sentence; such action is foreclosed by prior decisions. See Swanson v. Stephenson, CV No. 00-RRA-1560-S, doc. 21 (Aug. 30, 2000); see also Heck v. Humphrey, 512 U.S. 477, 484-87 (1994) (in order to establish his claims for malicious prosecution, plaintiff must establish that the prior criminal proceedings terminated in his favor). Moreover, the court finds that plaintiffs present action is completely devoid of merit.

Thus, the Motion to Dismiss, filed by Birdsong, is GRANTED, and all claims against Birdsong are DISMISSED. Also, for the reasons set forth above, all claims against the remaining defendants are DISMISSED, sua sponte.