# Binion v. City of Clanton (MAG+)

> District Court, M.D. Alabama · January 17, 2025

URL: https://www.frixlaw.com/law-library/cases/10784349

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** January 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10784349

## How later opinions describe it (automated extraction)

- noting that, while defective allegations of jurisdiction may be amended pursuant to § 1653, courts may deny a motion to amend on the basis of futility, undue delay, bad faith, undue prejudice to the opposing party, etc.

## Opinion text

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

ROBERT R. BINION, )
)
Plaintiff, )
)
v. ) CASE NO. 2:24-cv-213-RAH-JTA
) (WO)
CITY OF CLANTON, CITY COUNCIL )
OF CLANTON, and JEFF MIMS, )
Mayor, In His Official Capacity, )
)
Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE
Before the court is the Motion to Dismiss filed by Defendants City of Clanton,
Clanton City Council, and Jeff Mims. (Doc. No. 6.) Defendants seek dismissal of the
Complaint filed by Plaintiff Robert R. Binion on numerous grounds, including lack of
subject matter jurisdiction and lack of standing. (Id.) Pursuant to 28 U.S.C. § 636, this case
was referred to the undersigned for all pretrial proceedings and entry of any order or
recommendations as may be appropriate. (Doc. No. 4.)
For the reasons stated below, the undersigned recommends the motion be granted
as to lack of subject matter jurisdiction and standing, the motion be denied as moot on all
other grounds, and this action be dismissed without prejudice.
Plaintiff, proceeding pro se, filed the Complaint in this matter on April 5, 2024.
(Doc. No. 1.)1 In this action,2 Plaintiff sues the City of Clanton, the Clanton City Council,
and Clanton Mayor Jeff Mims, in his official capacity.3 Plaintiff seeks to challenge the
alleged closure of the Head Start Program in the West End community4 of Clanton. (Doc.

1 Plaintiff paid the filing fee and is not proceeding in forma pauperis.
2 Plaintiff is no stranger to this court. He is a frequent filer of pro se lawsuits in this District, and
many of his pro se lawsuits have been dismissed for failure to prosecute or comply with court
orders, or on the merits of arguments that were previously dismissed for lack of jurisdiction. See,
e.g., Binion, et al., v. The United States Department of Agriculture, et al., Case No. 2:18-cv-544-
MHT-KFP (dismissed for failure to state a claim, including lack of jurisdiction over claims
involving a settlement decree in another district in the case of Pigford v. Glickman, 185 F.R.D. 82
(D.D.C. 1999), affirmed, 206 F.3d 121 (D.C. Cir. 2000)); Binion v. McGriff, et al., Case No. 2:16-
cv-936-MHT-SRW (dismissed without prejudice for lack of subject matter jurisdiction and for
lack of prosecution in accordance with 28 U.S.C. § 1915(e)(2)(B)(iii) for failure to obey a court
order); Binion, et al., v. United States Department of Agriculture, et al., Case No. 2:16-cv-657-
WKW-SRW (dismissed for improper venue and lack of jurisdiction over Pigford settlement
enforcement claims); Binion v. McGriff, et al., Case No. 2:12-cv-1040-MHT-WC (dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be
granted); Binion v. Vilsack, Case No. 2:10-cv-920-WKW-WC (dismissed without prejudice for
failing to timely serve the defendant and for failing to comply with the orders of the court); Binion
v. Porter, et al., Case No. 2:94-cv-1477-ID-CSC (transferred to the Southern District of Alabama);
Ray, et al., v. 911 Executive Board, Case No. 2:93-cv-627-WHA-VPM. Plaintiff has also filed
several suits not listed here in which he was represented by counsel.
3 Plaintiff named Mims as a Defendant in his Complaint. (Doc. No. 1.) In response to the motion
to dismiss, Plaintiff states he “had no intention of filing a complaint against Honorable Jeff Mims.”
(Doc. No. 13 at 1.) Yet, that is what he did. Notably, Plaintiff has not moved to dismiss Defendant
Mims or sought to amend his Complaint to eliminate Mims as a Defendant. Plaintiff later
contradicted himself in a second response brief (Doc. No. 17) filed in violation of court orders
(Docs. No. 11, 15), stating: “Let the court acknowledge this complaint is the Office of Mayor, in
which Mr. Jeff Mims is entrusted to exercise and he [Mayor] shall be held accountable for his
decisions that will cause harm and damage to the Westend community.” (Doc. No. 17 at 1 (sic).)
Though Plaintiff’s filings regarding his intentions are contradictory, Mims is a defendant and has
been since Plaintiff filed this action.
4 Plaintiff spells the name of the community as both “West End community” and “Westend
community,” and with other variations in spacing and capitalization. Because The Clanton
Advertiser uses “West End community” (Doc. No. 1-1 at 16), the undersigned will use that
variation for consistency herein.
Westend Community located in Clanton, Alabama.” (Doc. No. 17 at 1.)
While Plaintiff’s Complaint is not a model of clarity, the Complaint and subsequent
filings establish that he is suing because he “believes but is not sure” the City of Clanton
placed federal funds earmarked for poor and underserved communities “into one pool” of
money. (Doc. No. 1; see also Doc. No. 17.) He posits the City of Clanton used the

combined pool of money primarily for the benefit of districts that were not poor or
underserved so the “pool” of money “was closed” before any improvements could be made
to the West End community.5 (Doc. No. 1; see also Doc. No. 17.) Plaintiff asserts the
alleged allocation of funds exclusively to other areas of the City of Clanton is imminently
likely to cause the closure of the Head Start pre-kindergarten facility located in the West

End community.6 (Doc. No. 1; Doc. No. 17.) He contends the Head Start facility “is critical
to the success of African American preschoolers,” and is particularly “essential to the
success of young African American preschoolers with learning disabilities.” (Doc. No. 17
at 2.) Plaintiff requests the court to “render whatever relief to assist the community.” (Doc.
No. 1 at 2.)

5 At the same time, Plaintiff acknowledges that funds were spent on placing speed bumps and a
new police station in the West End community. (Doc. No. 1.) Plaintiff opines that these
expenditures do not constitute improvements (id.), but that opinion is not material to his claims in
this action.
6 Plaintiff bases his assertions on a newspaper article in The Clanton Advertiser concerning
proceedings at a March 25, 2024 Clanton City Council meeting. He attached the article to his
Complaint and relied on it in the Complaint. (Doc. No. 1; Doc. No. 17.)
Subject matter jurisdiction is the power of the court to hear a class of cases, which
is conferred by statute. Arbaugh v. Y & H Corp., 546 U.S. 500, 503, 513 (2006). “[S]ubject-
matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited
or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). “The burden for establishing
federal subject matter jurisdiction rests with the party bringing the claim.” Williams v.

Poarch Band of Creek Indians, 839 F.3d 1312, 1314 (11th Cir. 2016) (citation omitted).
“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must
dismiss the complaint in its entirety.” Arbaugh, 546 U.S. at 514.
Article III of the Constitution limits the court’s subject matter jurisdiction to “cases”
and “controversies.” U.S. Const. art. III, § 2; Christian Coal. of Fla., Inc. v. United States,

662 F.3d 1182, 1189 (11th Cir. 2011). Because it “stems ‘directly from Article III’s “case
or controversy’ requirement,”’” standing implicates a federal court’s subject matter
jurisdiction over an action.7 Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1229 (11th
Cir. 2021) (quoting Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)).
“A plaintiff must demonstrate three things to establish standing under Article III.”

Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). First, the plaintiff must demonstrate
that the plaintiff has suffered an “injury-in-fact,” which means that the “‘harm suffered by
the plaintiff … is concrete and actual or imminent, not conjectural or hypothetical.’” Stalley

7 Where a plaintiff seeks injunctive relief, which regulates future conduct, the plaintiff must show
that the threat of future injury is “real and immediate—as opposed to merely conjectural or
hypothetical.” Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001)
(citations omitted).
(quoting Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1003 (11th Cir. 2004)).
The injury must be “‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.
Robins, 578 U.S. 330, 339 (2016), as revised (May 24, 2016) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). “For an injury to be ‘particularized,’ it ‘must affect

the plaintiff in a personal and individual way.’” Id. (quoting Lujan, 504 U.S. at 560). “An
interest unrelated to injury in fact is insufficient to give a plaintiff standing.” Vt. Agency of
Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 772 (2000). Second, after
demonstrating the existence of an injury-in-fact, “the plaintiff must demonstrate a causal
connection between the asserted injury-in-fact and the challenged action of the defendant.”

Shotz, 256 F.3d at 1081. That is, the plaintiff’s injury must be “fairly traceable” to the
defendant’s alleged conduct. Spokeo, 578 U.S. at 339. Third, the plaintiff must demonstrate
“redressability,” i.e., a “‘substantial likelihood’ that the requested relief will remedy the
alleged injury in fact.” Stevens, 529 U.S. at 771 (quoting Simon v. Eastern Ky. Welfare
Rights Organization, 426 U.S. 26, 45 (1976)).

Motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) bring either “facial attacks” or “factual attacks.” Lawrence v. Dunbar,
919 F.2d 1525, 1528–29 (11th Cir. 1990).
Facial attacks challenge subject matter jurisdiction based on the allegations
in the complaint, and the district court takes the allegations as true in deciding
whether to grant the motion. Id. at 1529. Factual attacks challenge subject
matter jurisdiction in fact, irrespective of the pleadings. Id. In resolving a
factual attack, the district court may consider extrinsic evidence such as
testimony and affidavits. Id.
Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003).
As indicated by the nature of a facial attack, “at the pleading stage, the plaintiff must
‘clearly . . . allege facts demonstrating’ each element” of standing. Spokeo, 578 U.S. at 338

(quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). In considering a facial attack, the
court “must evaluate standing based on the facts alleged in the complaint, and [the court]
may not ‘speculate concerning the existence of standing or piece together support for the
plaintiff.’” Shotz, 256 F.3d at 1081 (quoting Cone Corp. v. Florida Dept. of Transp., 921
F.2d 1190, 1210 (11th Cir. 1991)). Generally, if the allegations of jurisdiction are defective,

they “may be amended, upon terms, in the trial or appellate courts.” 28 U.S.C. § 1653.
However, the court is not required to allow an opportunity to amend to cure a jurisdictional
defect in the pleadings where the amendment would be futile. Foman v. Davis, 371 U.S.
178, 182 (1962); Crooked Creek Props., Inc. v. Ensley, 660 F. App’x 719, 721 (11th Cir.
2016) (noting that, while defective allegations of jurisdiction may be amended pursuant to

§ 1653, courts may deny a motion to amend on the basis of futility, undue delay, bad faith,
undue prejudice to the opposing party, etc.).
III. DISCUSSION
A. Standing
“Under Rule 8(a) of the Federal Rules of Civil Procedure, the complaint ‘must

contain . . . a short and plain statement of the grounds for the court’s jurisdiction,’ which
includes facts sufficient to establish Plaintiff’s standing to sue.” Raley v. United States, No.
2:23-cv-552-RAH-JTA, 2024 WL 2982038, at *5 (M.D. Ala. June 13, 2024) (quoting Fed.
R. Civ. P. 8(a)(1)), report and recommendation adopted, No. 2:23-cv-552-RAH, 2024 WL
as here, a case is at the pleading stage, the plaintiff must clearly . . . allege facts
demonstrating” each of the three elements of standing: “(1) [that the Plaintiff] suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision.” (citations omitted)); Warth
v. Seldin, 422 U.S. 490, 518 (1975) (“It is the responsibility of the complainant clearly to

allege facts demonstrating that he is a proper party to invoke judicial resolution of the
dispute and the exercise of the court’s remedial powers.”).
In his Complaint,8 Plaintiff failed to adequately allege standing to challenge the
possible closure of the Head Start pre-K facility. Plaintiff alleges injury to the West End
community but has not alleged any particularized injury to himself.9 For example, Plaintiff

has not alleged that he personally relies on the Head Start program. Nor has he alleged that,
as a West End “community leader,” the closure of the Head Start program would cause
him a particularized injury sufficient to support a finding of standing. See Spokeo, 578 U.S.
at 339 (“For an injury to be particularized, it must affect the plaintiff in a personal and

8 Plaintiff alleges his claims arise “under the 14th Amendment and the statues (sic) of Alabama
under the Equal Opportunity Act Alabama and Alabama Disability Act sections of the law as
stated.” (Doc. No. 1 at 1 (sic).) Thus, it appears Plaintiff purports to invoke the court’s subject
matter jurisdiction based on federal question jurisdiction. See 28 U.S.C. § 1331. Notwithstanding
Plaintiff’s reference to the 14th Amendment in his Complaint, he does not include any factual
allegations as to Article III standing.
9 Plaintiff fails to clearly allege that he is a current resident of the West End community. Plaintiff
alleges he is “a resident of Clanton[,] Alabama[,] and a civic leader in the community.” (Doc. No.
13 at 1.) However, neither this allegation, nor his address of record, contains any obvious
indication from which the court could take judicial notice that he currently resides in the West End
community.
internal quotation marks omitted)).
Further, the injury Plaintiff seeks to redress is intrinsically conjectural and
hypothetical, rather than real and immediate. See Spokeo, 578 U.S. at 339 (stating that an
injury-in-fact must be ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical’” (quoting Lujan, 504 U.S. at 560 (1992)). Plaintiff does not

demonstrate a real and immediate threat that the City of Clanton’s allocation of funds will
cause the Head Start facility to close. Wooden, 247 F.3d 1262, 1284 (11th Cir. 2001)
(noting that, where a plaintiff seeks injunctive relief to prevent a future injury, “the threat
of future injury” must be “real and immediate—as opposed to merely conjectural or
hypothetical”). He “believes but is not sure” that the City of Clanton is misallocating funds

that should be allocated to the West End community and the Head Start program. (Doc.
No. 1 at 2.) Plaintiff indicates that his “belief” is founded on the Clanton Advertiser
newspaper article, but that article indicates there is no immediate threat to the West End
community’s Head Start program.10 (Doc. No. 1; Doc. No. 17.)

10 In contrast to Plaintiff’s allegations, the newspaper article reports that Defendant Mims made
clear that the City had recently invested $30,000.00 in the building in which Head Start operates.
(Doc. No. 1-1 at 17.) The article reports that Defendant Mims stated, “I do not know where the
information came that we are shutting [Head Start] down, and nobody said that . . . . Head Start
has a room there they get to use free of charge, and that is going to continue to be that way.” (Id.)
With respect to the renegotiation of a five-year lease for rent and utilities, Defendant Mims stated
“that he . . . met with the directors of the Head Start Program,” that “the program [would] not be
shutting down” before the negotiations, and that “there are no plans to shut the program down at
all.” (Id. at 16-17.) Thus, the newspaper contradicts Plaintiff’s allegations that the Head Start
program was in danger of shutting down or, more importantly, that any concerns about the ongoing
viability of the program stemmed from some failure by Defendants to allocate earmarked funds to
support it or the West End community. Were the undersigned to consider the motion to dismiss
for failure to state a claim upon which relief could be granted, the discrepancy between the
newspaper article and the allegations in the Complaint may be fatal to Plaintiff’s claims. See
this action and thus the court does not have jurisdiction over his Complaint. See Stalley,
524 F.3d at1232 (“[A] plaintiff without an injury in fact lacks Article III standing, and the
federal courts do not have jurisdiction over his or her complaint.”).
B. Amendment
Ordinarily, Plaintiff should be allowed an opportunity to amend his Complaint to

cure the defective allegations of jurisdiction, but the undersigned finds such opportunity is
not necessary here as amendment would be futile for two reasons. See Raley, 2024 WL
2982038, at *3 (noting that, while defective allegations of jurisdiction generally ‘may be
amended, upon terms, in the trial or appellate courts[,]’ 28 U.S.C. § 1653,” an opportunity
to amend to cure a jurisdictional defect “is not required . . . where the amendment would

be futile.” (citing Foman, 371 U.S. at 182; Crooked Creek, 660 F. App’x at 721)).
First, in response to the motion to dismiss, Plaintiff has not shown that, if allowed
to amend, he could clearly articulate facts necessary to establish standing. Rather, he
doubles down on his theory that his right to bring suit is premised solely on his position as
a “community leader,” without articulating any particularized injury to himself.

Second, even if Plaintiff alleged facts sufficient to establish standing in an amended
complaint, this matter would nonetheless be subject to dismissal due to his endeavor to sue
pro se on behalf of others in the West End community.11 Pro se plaintiffs may not bring

Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) (“A district court can generally
consider exhibits attached to a complaint in ruling on a motion to dismiss, and if the allegations of
the complaint about a particular exhibit conflict with the contents of the exhibit itself, the exhibit
controls.”).
11 Defendants did not raise this issue in their motion to dismiss.
(citing Timson v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008)). The federal statute which
permits parties to proceed pro se specifically provides that “parties may plead and conduct
their own cases personally or by counsel.” 28 U.S.C. § 1654 (emphasis added). Section
1654 provides “a personal right that does not extend to the representation of the interest of
others.” Timson, 518 F.3d at 873. Therefore, “[i]n federal court, a party may proceed either

pro se or with representation by counsel.” Dickerson v. Ray, No. 2:23-CV-315-MHT-JTA,
2024 WL 1099327, at *2 (M.D. Ala. Feb. 26, 2024), report and recommendation adopted,
No. 2:23CV315-MHT, 2024 WL 1097151 (M.D. Ala. Mar. 13, 2024); see Wheat v. United
States, 486 U.S. 153, 159 (1998) (“Regardless of his persuasive powers, an advocate who
is not a member of the bar may not represent clients (other than himself) in court.”); White

v. United States, No. 22-13736, 2023 WL 3885816, at *1 (11th Cir. June 8, 2023)
(unpublished) (dismissing the appeal of a husband who purported to sue pro se on behalf
of his wife because “the right to appear pro se extends to parties conducting ‘their own
cases,’ not to persons representing the interests of others”), cert. denied, 144 S. Ct. 380,
217 L. Ed. 2d 205 (2023); Grappell v. Carvalho, 847 F. App’x 698, 701 (11th Cir. 2021)

(holding that “the right to appear pro se does not extend to non-attorney parties
representing the interests of others”). Though Plaintiff may be a “community leader,” he
“admits that he is not a lawyer or attorney.” (Doc. No. 13 at 1; see also Doc. No. 17 at 1
(“Plaintiff Robert R. Binion, Community Leader, admits that he is not an expert of the law
or an attorney; however, he shall be allowed to implement his civic duty as a community

leader of the Westend Community located in Clanton, Alabama.” (sic)).) Accordingly,
would be futile and is not warranted. Consequently, this action is due to be dismissed
without prejudice.
IV. CONCLUSION
For the reasons set forth above, the Magistrate Judge RECOMMENDS as follows:
1. Defendant’s motion to dismiss for lack of standing and subject matter

jurisdiction (Doc. No. 6) be GRANTED.
2. Defendant’s motion to dismiss (Doc. No. 6), in all other respects, be
DENIED as moot.
3. This action be DISMISSED WITHOUT PREJUDICE.
Further, it is ORDERED that the parties shall file any objections to this

Recommendation on or before January 31, 2025. A party must specifically identify the
factual findings and legal conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be considered. Plaintiff is advised that
this Recommendation is not a final order of the Court; therefore, it is not appealable.
Failure to file written objections to the Magistrate Judge’s findings and

recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar a
party from a de novo determination by the District Court of legal and factual issues covered
in the Recommendation and waives the right of the party to challenge on appeal the district
court’s order based on unobjected-to factual and legal conclusions accepted or adopted by
the District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1; see Stein v. Lanning
Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661
F.2d 1206 (11th Cir. 1981).
DONE this 17th day of January, 2025.

Sone T. ADAMS
UWITED STATES MAGISTRATE JUDGE

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10784349. Public record. Not legal advice.