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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11244
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-00618-CG-N
ELMORE S. WELCH, JR.,
Plaintiff - Appellant,
versus
ATMORE COMMUNITY HOSPITAL,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(August 18, 2017)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Elmore Welch, proceeding pro se and in forma pauperis, appeals the district
court’s dismissal of his amended complaint without prejudice for lack of subject
matter jurisdiction. On appeal, Welch argues that his amended complaint
established subject matter jurisdiction pursuant to: (1) a statutory grant under the
Controlled Substances Act, 21 U.S.C. § 801 et seq.; (2) federal question
jurisdiction under 28 U.S.C. § 1331; and (3) diversity jurisdiction under 28 U.S.C.
§ 1332. After thorough review, we affirm.
I. BACKGROUND
On December 13, 2016, Welch filed a pro se complaint against Atmore
Community Hospital (“the Hospital”). Welch’s complaint alleged that the Hospital
staff gave Welch’s father “a large dose of medication” called Ativan that placed
Welch’s father in a coma and ultimately contributed to his death. Welch’s
complaint characterized his suit as a “wrongful death” action against the Hospital
and sought damages for (1) the Hospital’s alleged profits of approximately $65,000
while his father was in a coma and (2) approximately $40,000 in costs incurred to
transport his father by helicopter to another hospital during his treatment.
A magistrate judge sua sponte reviewed Welch’s complaint. On January 17,
2017, the magistrate judge issued an order requiring Welch to file an amended
complaint and assert the basis for the district court’s jurisdiction. The magistrate
judge construed Welch’s complaint as supporting only a state-law claim for
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wrongful death between two citizens whose citizenships were not alleged. The
magistrate judge thus determined that Welch’s complaint failed to allege a
statutory grant of jurisdiction, federal question jurisdiction under 28 U.S.C. § 1331,
or diversity jurisdiction under 28 U.S.C § 1332. The magistrate judge advised
Welch that a failure to allege facts supporting subject matter jurisdiction in his
amended complaint would lead to a recommendation that Welch’s case be
dismissed.
On January 24, 2017, Welch filed an amended complaint. Welch’s amended
complaint asserted that that the Controlled Substances Act, 21 U.S.C. § 801 et seq.,
specifically § 812, provided a statutory grant of jurisdiction because the Act is a
“Federal Drug Polic[y]” and regulates Ativan, the drug that allegedly contributed
to the death of Welch’s father. Welch’s amended complaint also raised the
possibility of federal question jurisdiction, stating that the Controlled Substances
Act was an “[o]ver view [of] CRIMINAL LAW” in relation to Welch’s state-law
wrongful death claim. As to diversity jurisdiction, Welch’s amended complaint
alleged that such jurisdiction was proper because “this controver[sy] does exceed[]
over $75,00[0].00.”
Thereafter, on February 17, 2017, the magistrate judge issued a report and
recommendation that Welch’s amended complaint be dismissed without prejudice
for lack of subject matter jurisdiction.
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In the report and recommendation, the magistrate judge noted that the
Controlled Substances Act “does not contain a ‘specific statutory grant’ of
jurisdiction for private litigants such as Welch” and does not create a private right
of action. The magistrate judge also noted that Welch’s amended complaint did not
raise a federal question because “the state-law claim must really and substantially
involve a dispute or controversy respecting the validity, construction or effect of
federal law,” and “any purported violation of the Controlled Substances Act [in
this case] [wa]s, at most, an element of Welch’s state-law wrongful death claim.”
See Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1290 (11th Cir. 2004)
(citation and quotation marks omitted). Lastly, the magistrate judge determined
that diversity jurisdiction was improper—notwithstanding Welch’s allegations as
to the amount in controversy exceeding $75,000—because Welch’s amended
complaint still failed to allege facts establishing the citizenship of the parties.
On March 6, 2017, the district court issued an order adopting the magistrate
judge’s report and recommendation and dismissing Welch’s amended complaint
without prejudice.
On March 16, 2017, Welch timely appealed.
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II. DISCUSSION
A. Applicable Law
If a district court at any time determines that it lacks subject matter
jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3). A federal district
court “must have at least one of three types of subject matter jurisdiction:
(1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction
pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a).” PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1305 (11th Cir.
2016) (quoting Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir.
1997)).1
The plaintiff must adequately allege a basis for federal jurisdiction by
including “a short and plain statement of the grounds for the court’s jurisdiction” in
the complaint. Fed. R. Civ. P. 8(a)(1). We hold the allegations of a pro se
complaint to less stringent standards than those for pleadings drafted by lawyers.
Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). However,
“[d]espite construction leniency afforded pro se litigants, we nevertheless have
required them to conform to procedural rules.” Loren v. Sasser, 309 F.3d 1296,
1304 (11th Cir. 2002) (per curiam).
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We review de novo a district court’s order dismissing a complaint for lack of subject
matter jurisdiction. Motta ex rel. A.M. v. United States, 717 F.3d 840, 843 (11th Cir. 2013).
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B. Statutory Grant
As an initial matter, the district court did not have jurisdiction pursuant to a
statutory grant under the Controlled Substances Act. Welch’s amended complaint
references § 812 of the Act as the basis for such jurisdiction. However, § 812
establishes the Schedule of Controlled Substances and outlines five categories of
such controlled substances for regulatory purposes. See 21 U.S.C. § 812. Section
812 does not contain any language establishing a private right of action to enforce
the Act’s regulatory scheme. See id.
Moreover, even liberally construing Welch’s amended complaint to assert a
private right of action as existing under any part of the Act, we conclude that no
part of the Act provides a private remedy or contains a “specific statutory grant” of
jurisdiction for private litigants, such as Welch, to bring civil claims. See 21 U.S.C.
§ 801, et seq.; Durr v. Strickland, 602 F.3d 788, 789 (6th Cir. 2010) (affirming the
district court’s conclusion that the plaintiff was not entitled to declaratory relief
under the Controlled Substances Act because it provides no private right of action);
see also Zink v. Lombardi, 783 F.3d 1089, 1113 (8th Cir. 2015) (“[The plaintiffs]
acknowledge, however, that there is no private right of action under federal law to
enforce these alleged violations [of the Controlled Substances Act].”). Welch cites
no such statutory grant, and we can find none.
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C. Federal Question Jurisdiction
For a district court to have federal question jurisdiction under 28 U.S.C.
§ 1331, the plaintiff’s complaint must establish “either that federal law creates the
cause of action or that the plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.” Smith v. GTE Corp., 236 F.3d
1292, 1310 (11th Cir. 2001) (quoting Franchise Tax Bd. V. Constr. Laborers
Vacation Tr. for S. Cal., 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2856 (1983)).
“[A] federal court has jurisdiction of a state-law claim if it ‘necessarily
raise[s] a stated federal issue, actually disputed and substantial, which a federal
forum may entertain without disturbing any congressionally approved balance’ of
federal and state power.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning,
578 U.S. ___, 136 S. Ct. 1562, 1570 (2016) (quotation omitted). “[T]he mere
presence of a federal issue in a state cause of action does not automatically confer
federal-question jurisdiction.” Dunlap v. G&L Holding Grp., Inc. 381 F.3d 1285,
1290 (11th Cir. 2004) (alteration in original) (quoting Merrell Dow Pharms., Inc. v.
Thompson, 478 U.S. 804, 813, 106 S. Ct. 3229, 3234 (1986)). However, such
jurisdiction may lie where “a state-law cause of action is ‘brought to enforce’ a
duty created by the [federal law] because the claim’s very success depends on
giving effect to a federal requirement.” Manning, 578 U.S. at ___, 136 S. Ct. at
1570.
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As discussed above, the Controlled Substances Act does not independently
create a private right of action. Construing Welch’s amended complaint liberally,
Welch additionally alleges that his state law wrongful death action requires
resolution of a federal question because the alleged harmful drug involved—
Ativan—is a controlled substance under the Act.
Even so, Welch’s amended complaint fails to allege facts linking the
harmful conduct underlying his wrongful death claim to the Act’s regulatory
scheme. Contrarily, Welch’s amended complaint provides, at most, a conclusory
statement that federal jurisdiction is proper: “My [amended complaint] will be
b[r]ough[t] before the Court [under] THE CONTROLLED SUBSTANC[E]S
ACT.” Welch offers no facts showing whether, or how, the Controlled Substances
Act creates a federal duty on the Hospital that is “substantial” to Welch’s wrongful
death claim. See Manning, 578 U.S. at ___, 136 S. Ct. at 1570. Accordingly, we
cannot say that the district court erred in declining to find federal question
jurisdiction. See Dunlap, 381 F.3d at 1290.
D. Diversity Jurisdiction
For a district court to have diversity jurisdiction under 28 U.S.C. § 1332, the
action must be between “citizens of different States,” and the amount in
controversy must exceed $75,000. See 28 U.S.C. § 1332(a)(1). “[D]iversity
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jurisdiction is determined at the time of filing the complaint.” PTA–FLA, 844 F.3d
at 1306.
In his amended complaint, Welch alleged that the amount in controversy
exceeds $75,000. Welch’s amended complaint does not provide particularized facts
in support of this allegation. However, in keeping with the relaxed pleadings
standards for pro se litigants, we assume for the sake of argument that Welch
adequately alleges this amount through his initial complaint, in which he alleges
over $100,000 in damages between the Hospital’s profits and the transportation
costs associated with his father’s medical care.
Even assuming that the allegations in Welch’s amended complaint thus meet
the amount-in-controversy requirement, Welch’s amended complaint alleges no
facts suggesting that the parties are citizens of different states. Welch’s amended
complaint describes the Hospital as a “Mobile Infirmary” located in Alabama and
lists Welch’s own residence as being located in Atmore, Alabama. Even under the
relaxed pro se pleadings standards, Welch’s amended complaint provides no
additional facts suggesting possible diversity of citizenship. Indeed, on appeal,
Welch continues to reference both parties as citizens of Alabama. Thus, the district
court did not err in finding that it lacked diversity jurisdiction.
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III. CONCLUSION
For all of the above reasons, we affirm the district court’s dismissal of
Welch’s amended complaint without prejudice.
AFFIRMED.
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