Hicks

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ZACHERY PERNELL HICKS,

Plaintiff,

v. Case No. 8:25-cv-02944-TPB-NHA

THE HOME DEPOT STORE

#0256,

Defendant.

___________________________________/

REPORT AND RECOMMENDATIONS

I recommend Plaintiff’s motion to proceed without pre-paying the filing

fee (Doc. 4) be denied without prejudice, and that his Complaint (Doc. 1) be

dismissed without prejudice, subject to his right to amend his Complaint and

re-file his motion to proceed without pre-paying the filing fee within 60 days.

I. Background

Plaintiff Zachery Pernell Hicks sues Defendant “The Home Depot Store

#0256,” seeking damages for an injury Plaintiff sustained while shopping at a

Home Depot store in Tampa, Florida. Doc. 1. Specifically, Plaintiff claims he

was cut by protruding sheet metal while shopping, due to Defendant’s “gross

negligence, carelessness, recklessness, [and] willfulness.” Id., p. 4. Along with

his complaint, Plaintiff filed a motion to proceed without paying the filing fee.

Doc. 4.

On November 9, the Court issued an order directing the Plaintiff to

either demonstrate how the Court had subject matter jurisdiction over his

claims or to amend his complaint. Doc. 5. The Court explained that Plaintiff

could not proceed with his action unless the Court had either diversity

jurisdiction or federal question jurisdiction over his lawsuit. Id., p. 2. The Court

further noted that, while Plaintiff asserted that the Court had diversity

jurisdiction over his claims, he also asserted that both he and the Defendant

were citizens of Florida, which would prevent the Court from exercising

diversity jurisdiction. Id., p. 3.

In his response to the show cause order, Plaintiff appeared to assert that

the Court had both federal question and diversity jurisdiction over his lawsuit.

See Doc. 6, p. 1 (“Jurisdiction of this Court arises under 28. U.S.C. 1331 and 28

U.S.C 1332.”). As to diversity jurisdiction, the Plaintiff confirmed that Plaintiff

and Defendant are both citizens of Florida. Doc. 6 ¶¶ 1-2. As to federal question

jurisdiction, Plaintiff explained that he had advanced “allegations that

Defendant violated Plaintiff’s civil rights under 42 U.S.C. 1981, 42 U.S.C. 1983

of the act.” Id., p. 1.

II. Standard of Review and Legal Authority

The federal statute that governs the right to bring a lawsuit without pre-

paying a filing fee, 28 U.S.C. § 1915, “is designed to ensure that indigent

litigants have meaningful access to the federal courts.” Neitzke v. Williams,

490 U.S. 319, 324 (1989). Accordingly, the statute permits a litigant to

commence an action in federal court “by filing in good faith an affidavit stating

. . . that he is unable to pay the costs of the lawsuit.” Id. “Congress recognized,

however, that a litigant whose filing fees and court costs are assumed by the

public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.” Id. To that end, section 1915

provides that a court shall dismiss a case if the court determines the action is

frivolous or malicious, fails to state a claim on which relief may be granted, or

seeks monetary relief against a defendant who is immune from such relief. 28

U.S.C. § 1915(e)(2)(B). An action is frivolous when a complaint lacks an

arguable basis either in law or in fact. Neitzke, 490 U.S. at 325.

Federal courts must hold pro se filings (meaning those papers filed by a

party who represents himself) to “less stringent standards than formal

pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). More

specifically, a court must “provide[] pro se parties wide latitude when

construing their pleadings and papers” and to “use common sense to determine

what relief the party desires.” S.E.C. v. Elliot, 953 F.2d 1560, 1582 (11th Cir.

1992). Nonetheless, courts need not exempt pro se litigants from complying

with the requirements imposed by the law and rules of procedure. See Brown

v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990); Moon v. Newsome, 863 F.2d

835, 837 (11th Cir. 1989).

Finally, independent of the Court’s duty under section 1915(e) to

evaluate the claim of a party proceeding in forma pauperis, the Court also has

an obligation to ensure that subject matter jurisdiction exists. See FED. R. CIV.

P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”); see also Arbaugh v. Y & H

Corp., 546 U.S. 500, 514 (2006) (“[W]hen a federal court concludes that it lacks

subject-matter jurisdiction, the court must dismiss the complaint in its

entirety.”).

“Federal courts have limited subject matter jurisdiction, or in other

words, they have the power to decide only certain types of cases.” Morrison v.

Allstate Indem. Co., 228 F.3d 1255, 1260–61 (11th Cir. 2000) (citing University

of South Alabama v. American Tobacco Co., 168 F.3d 405, 409–10 (11th Cir.

1999)). First, federal courts have federal question jurisdiction over “all civil

actions arising under the Constitution, laws, or treaties of the United States.”

28 U.S.C. § 1331. Second, district courts have diversity jurisdiction over all

civil actions where (1) the matter in controversy exceeds $75,000, exclusive of

interest and costs, and (2) the parties are citizens of different states. 28 U.S.C.

§ 1332. Critically, unless the party asserting jurisdiction proves otherwise, “[i]t

is to be presumed that a cause lies outside [a federal court’s] limited

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994).

III. Analysis

Construing Plaintiff’s filings liberally, he asserts that the Court has both

diversity jurisdiction and federal question jurisdiction over his lawsuit. See

Doc. 6, p. 1 (“Jurisdiction of this Court arises under 28. U.S.C. 1331 and 28

U.S.C 1332.”) I address each in turn.

a. Diversity Jurisdiction

For a court to have diversity jurisdiction, the citizenship of each plaintiff

must be different from that of each defendant. Owen Equip. & Erection Co. v.

Kroger, 437 U.S. 365, 373 (1978). The citizenship of each party is determined

differently as to individuals and corporations. An individual’s citizenship is

determined by where he is “domiciled,” which means “the place of his true,

fixed, and permanent home and principal establishment, and to which he has

the intention of returning whenever he is absent therefrom.” McCormick v.

Aderholt, 293 F.3d 1254, 1257–58 (11th Cir. 2002) (quotations omitted). In the

case of corporations, “a corporation shall be deemed to be a citizen of every

State and foreign state by which it has been incorporated and of the State or

foreign state where it has its principal place of business . . .” 28 U.S.C. §

1332(c)(1).

Here, Plaintiff asserts in his complaint that he is a citizen of Florida, and

that Defendant is a citizen of Florida, in that it is incorporated under the laws

of Florida and has its principal place of business in Florida. Doc. 1, p. 3. In its

show cause order, the Court cautioned Plaintiff that, “If Plaintiff is correct

about this, both the Plaintiff and the Defendant are citizens of the same state,

and the Court cannot have diversity jurisdiction over his case.” Doc. 5, p. 3.

Nonetheless, in his response to that order, Plaintiff asserts that he is “a

resident of Florida,” (although this does not determine Plaintiff’s citizenship,

nor does it undermine his assertion in the complaint that he is a citizen of

Florida), and that “the Defendants are Florida companies doing business in

Hillsborough County Florida and wholly owned and operated by the same

owners.” Doc. 6 ¶¶ 1-2. Thus, Plaintiff provides no factual basis on which the

Court can find it has diversity jurisdiction over his lawsuit.

b. Federal Question Jurisdiction

Federal courts have federal question jurisdiction over “all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28

U.S.C. § 1331. Thus, a complaint presents a federal question where it

“establishes 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.” Franchise Tax Bd. v. Construction Laborers Vacation

Trust for S. Cal., 463 U.S. 1, 27–28 (1983).

Here, although the complaint neither expressly invokes federal question

jurisdiction, nor references a federal cause of action, in response to the Court’s

show cause order, Plaintiff states that he brings claims under two federal laws:

42 U.S.C. §§ 1981 and 1983. Plaintiff does not explain how these laws provide

a basis for the claims he brings against Defendant, nor does the Court see how

they might.

i. 42 U.S.C. § 1981

42 U.S.C. § 1981 prohibits discrimination in making and enforcing

contracts. “Any claim brought under § 1981, therefore, must initially identify

an impaired contractual relationship under which the plaintiff has rights.”

Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (citation omitted).

Additionally, a plaintiff must allege that he was discriminated against because

of his membership in a racial or ethnic group. See St. Francis College v. Al-

Khazraji, 481 U.S. 604, 613 (1987) (“Based on the history of § 1981, we have

little trouble in concluding that Congress intended to protect from

discrimination identifiable classes of persons who are subjected to intentional

discrimination solely because of their ancestry or ethnic characteristics.”)

Thus, generally, to establish a § 1981 claim, “a plaintiff must allege facts

establishing: (1) that he is a member of a racial minority; (2) that the defendant

intended to discriminate on the basis of race; and (3) that the discrimination

concerned one or more of the activities enumerated in the statute.” Moore v.

Grady Meml. Hosp. Corp., 834 F.3d 1168, 1171–72 (11th Cir. 2016).

Here, Plaintiff has not claimed that he is a member of a protected group,

or that Defendant discriminated against him. Plaintiff also pleads no facts

suggesting he has rights under a “contractual relationship” with Defendant.

Thus, while his response to the show cause order invokes section 1981, he has

not stated a claim under that statute, and so such a claim cannot support this

Court’s jurisdiction.

i. 42 U.S.C. § 1983

“In order to prevail on a civil rights action under § 1983, a plaintiff must

show that he was deprived of a federal right by a person acting under color of

state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001)

(citation omitted). “[T]he under-color-of-state-law element of § 1983 excludes

from its reach merely private conduct, no matter how discriminatory or

wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).

Here, Plaintiff has not alleged facts suggesting that Home Depot violated

any of his federal rights or that the actions of Home Depot and/or its employees

were anything other than “merely private conduct.” Because Plaintiff has not

stated a claim under section 1983, that statute cannot support this Court’s

jurisdiction over Plaintiff’s lawsuit.

IV. Conclusion

In sum, it does not appear that a federal court (as opposed to a state

court) has jurisdiction over the claims stated in the current Complaint.

Because Defendants have not yet answered, federal law allows Plaintiff the

opportunity to file an amended complaint. Troville v. Venz, 303 F.3d 1256, 1260

n. 5 (11th Cir. 2002) (Ҥ 1915(e)(2)(B)(ii) does not allow the district court to

dismiss an in forma pauperis complaint without allowing leave to amend when

required by Fed. R. Civ. P. 15.”).

Accordingly, I respectfully RECOMMEND that the Court:

(1) Deny without prejudice (meaning Plaintiff could try again)

Plaintiff’s motion to proceed in forma pauperis (Doc. 4);

(2) Dismiss without prejudice Plaintiff’s complaint (Doc. 1) , subject to

the right of Plaintiff to file an amended complaint and amended

motion to proceed in forma pauperis within 30 days of the District

Court’s order of dismissal;

(3) At the close of the 60-day period, if Plaintiff has failed to file the

amended documents, dismiss the case with prejudice, meaning

that Plaintiff would not be allowed to re-open or re-file this lawsuit.

REPORTED on December 18, 2025.

Hola HIRT ADAMS

United States Magistrate Judge

NOTICE TO PARTIES

A party has fourteen days from this date to file written objections to the

Report and Recommendation’s factual findings and legal conclusions. A party’s

failure to file written objections waives that party’s right to challenge on appeal

any unobjected-to factual finding or legal conclusion the district judge adopts

from the Report and Recommendation. See 11th Cir. R. 3-1. To expedite

resolution, parties may file a joint notice waiving the 14-day objection period.

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