           Case: 17-11244   Date Filed: 08/18/2017   Page: 1 of 10




                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11244
                         Non-Argument Calendar
                       ________________________

                  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).



       1
         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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