              Case: 12-16495    Date Filed: 08/23/2013   Page: 1 of 9


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16495
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:12-cv-00864-GKS-KRS

JEFF ENDERS,

                                                         Plaintiff-Appellant,

                                     versus

STATE OF FLORIDA,

                                                         Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                (August 23, 2013)

Before BARKETT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

      Jeff Enders, proceeding pro se, appeals the dismissal, without prejudice, of

his 42 U.S.C. § 1983 action for a failure to state a claim upon which relief may be

granted under Fed.R.Civ.P. 12(b)(6), as well as the subsequent denial of his motion
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for reconsideration of that dismissal. In his § 1983 complaint, Enders asserted that

numerous statutes contained in the Obscenity Chapter (847) of the Florida Statutes

were unconstitutional because they prevented him from ordering two-year mail-

order subscriptions to Hustler Taboo and Hustler XXX magazines. The district

dismissed Enders’s action, without prejudice, and denied his motion for

reconsideration.    On appeal, Enders argues that the district court erred in

dismissing his § 1983 complaint and in failing to reconsider its prior order

dismissing the complaint. However, because the plaintiff Enders undeniably lacks

standing to bring this suit, we dismiss the appeal without prejudice for lack of

subject matter jurisdiction.

      We review de novo basic questions concerning our subject matter

jurisdiction, including standing. Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir.

2006). The party invoking federal jurisdiction bears the burden of proving the

essential elements of standing, although “[a]t the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct may suffice[.]” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Pro se pleadings are to be

liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998).   However, courts are not required to “rewrite an otherwise deficient

pleading in order to sustain an action.” See GJR Inv., Inc. v. County of Escambia,




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Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Ashcroft

v. Iqbal, 556 U.S. 662 (2009).

      It is by now axiomatic that “Article III of the Constitution limits the ‘judicial

power’ of the United States to the resolution of ‘cases’ and ‘controversies.’ ”

Valley Forge Christian Coll. v. Ams. United for Separation of Church & State,

Inc., 454 U.S. 464, 471 (1982). The Supreme Court has declared that the standing

inquiry “is an essential and unchanging part of the case-or-controversy requirement

of Article III.” Lujan, 504 U.S. at 560. Moreover, “[s]tanding is a threshold

jurisdictional question which must be addressed prior to and independent of the

merits of a party’s claims.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974

(11th Cir. 2005) (citation and quotation marks omitted). We have thus held that

“[t]he standing inquiry requires careful judicial examination of a complaint’s

allegations to ascertain whether the particular plaintiff is entitled to an adjudication

of the particular claims asserted.” Elend, 471 F.3d at 1205-06 (internal quotation

marks omitted). “It is not enough that the [plaintiff]’s complaint sets forth facts

from which we could imagine an injury sufficient to satisfy Article III’s standing

requirements.” Id. at 1206 (quotation omitted). Indeed, “we should not speculate

concerning the existence of standing .... If the plaintiff fails to meet its burden, this

court lacks the power to create jurisdiction by embellishing a deficient allegation

of injury.” Id. (citation omitted).



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      In Lujan, the Supreme Court held that a party seeking to invoke the subject

matter jurisdiction of a federal court must establish the following:

      First, the plaintiff must have suffered an injury in fact -- an invasion of a
      legally protected interest which is (a) concrete and particularized, and (b)
      actual or imminent, not conjectural or hypothetical. Second, there must be a
      causal connection between the injury and the conduct complained of -- the
      injury has to be fairly traceable to the challenged action of the defendant,
      and not the result of the independent action of some third party not before
      the court. Third, it must be likely, as opposed to merely speculative, that the
      injury will be redressed by a favorable decision.

504 U.S. at 560-61 (page numbers, quotation marks, citations, brackets, and

ellipses omitted).

      In 2012, Enders, a non-prisoner, filed the present action under 42 U.S.C. §

1983, alleging violations of his First, Fourth, Fifth, Seventh, Eighth, Ninth, and

Fourteenth Amendment rights against the State of Florida. Enders also asserted

that numerous statutes contained in Chapter 847 of the Florida Statutes were

unconstitutional: §§ 847.001(4), (5), (6)(a)-(10)(a), (10)(b), (12), (17)-(19), and

(20)(b), (c); 847.011(1)(c), (2), (3), (4), (7), and (9); 847.0135(2)(a)-(d), (5)(a)-(b),

(6); 847.0137(l)(b); 847.06(1)-(2); 847.07; 847.09(1)-(2); 847.02; 847.03; and

847.09(1)-(2). He alleged that these statutes unconstitutionally prevented him

from ordering two-year mail-order subscriptions to Hustler Taboo and Hustler

XXX magazines. Thus, he said, the statutes impermissibly prohibited consensual

sexual activity between heterosexual couples, as well as masturbation in the

privacy of one’s home, and therefore, violated his Fifth and Fourteenth

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Amendment rights to personal private property, and right to liberty. Enders also

claimed that the statutes gave police officers the power to arrest individuals and

deprive them of their personal property through the confiscation of the obscene

material -- constituting cruel and unusual punishment under the Eighth

Amendment, and unreasonable seizures and theft under the Fourth Amendment.

      Here, Enders’s complaint fails the test for constitutional standing established

in Lujan. At most, Enders says that because of Florida’s Chapter 847 statutes, he

may have been unable to obtain a mail-order subscription to Hustler Taboo and

Hustler XXX magazines. Beyond this, as the district court observed, the complaint

contains the barest of legal conclusions and hypothetical violations of the Fourth

and Eighth Amendments. Indeed, Enders does not assert that the magazines were

obscene under the Florida statutes, nor otherwise explain how the Florida statutes

prevented him from ordering the magazines; he does not say whether Hustler

claimed that the Florida statutes prevented it from selling its magazines in Florida;

nor does Ender even allege that he attempted to order the magazines and could not.

      The omissions in this complaint are therefore similar to those in Swann v.

Secretary, Georgia, 668 F.3d 1285 (11th Cir. 2012), and DiMaio v. Democratic

Nat’l Comm. (“DNC”), 520 F.3d 1299 (11th Cir. 2008). In Swann, we held that a

former inmate of a county jail lacked standing to complain that state and local

officials failed to mail him a ballot at the jail even though he never asked them to



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mail him a ballot there. Among other things, we concluded that Swann failed to

satisfy the second Lujan prong -- traceability -- since “an injury is not fairly

traceable to the actions of a defendant if caused by the independent action of some

third party not before the court and likewise a controversy is not justiciable when a

plaintiff independently caused his own injury.”           Swann, 668 F.3d at 1288

(quotations and citations omitted). Here too -- Enders’s ability to purchase the

magazines cannot be impaired by the Florida statutes’ operation if he did not

attempt to order the materials, or if Hustler’s reason for not mailing the magazines

to Florida hinged on other reasons.     In DiMaio, we concluded that a registered

voter who had challenged the decision of the DNC not to seat delegates from the

Florida primary at the party’s national convention lacked standing to bring suit

because, inter alia, “DiMaio never alleged that he actually voted, nor even so much

as suggested that he intended to vote in the Florida Democratic Primary.” 520

F.3d at 1302. Thus, we found that the complaint did not satisfy the third prong of

the Lujan test, “for if DiMaio has not voted, we are unable to redress any alleged

violation of his constitutional rights.” Id. at 1303. Similarly, if Enders has not

attempted to order the magazines or if the statutes have not barred the sale of the

magazines, we are unable to redress any alleged violation of his constitutional

rights.




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      As for Enders’s suggestion that any arrest under these Florida statutes would

constitute cruel and unusual punishment, he also lacks standing for this claim. In

the context of a First Amendment claim like this -- alleging that a criminal statute

prohibiting conduct is unconstitutional -- a plaintiff must show that, as a result of

his desired expression, (1) he was threatened with prosecution; (2) prosecution is

likely; or (3) at least that there is a credible threat of prosecution. Harrell v. The

Florida Bar, 608 F.3d 1241, 1260 (11th Cir. 2010). In the complaint before us,

Enders has failed to allege that he has been charged under any section of Chapter

847 or that he is under the threat of being so charged. For example, Enders

challenges the constitutionality of Florida Statute § 847.0135(2)(a-d) and (5)(a-b)

which prohibit exposing one’s genitals to a minor under 16 via a computer and

printing, publishing, reproducing, buying, selling, receiving, exchanging or

disseminating any minor’s name, telephone number, place of residence, physical

characteristics, or other descriptive for purposes of soliciting sexual conduct or

visual depiction of such conduct with a minor. However, Enders has failed to

allege how receiving a two-year subscription to Hustler XXX or Hustler Taboo

magazines would place him under a credible fear of being charged under these

particular sections of the Florida statutes.

      Enders also challenges the constitutionality of Florida Statute § 847.06,

which prohibits the transportation of obscene material into Florida for the purpose



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of selling or distributing the material. Section 847.06 applies to distributors and

vendors of obscene material and not people who purchase obscene material.

Enders has not alleged that he has sold or plans on selling or distributing Hustler

XXX or Hustler Taboo, and therefore, he could not be charged under section

847.06. Thus, Enders has failed to demonstrate a credible threat of prosecution

under section 847.06.

      In short, Enders does not have standing because he has not established how

Florida’s Chapter 847 has affected his rights, nor that he has been charged or has a

credible fear that he will be charged under Chapter 847.          Accordingly, we

AFFIRM the dismissal of Enders’s complaint albeit on different grounds -- the

claims are nonjusticiable because the plaintiff, at least based on the pleadings

contained in his complaint, lacked standing to bring this lawsuit. This dismissal is

necessarily without prejudice. See Boda v. United States, 698 F.2d 1174, 1177 n.4

(11th Cir. 1983) (“Where dismissal can be based on lack of subject matter

jurisdiction and failure to state a claim, the court should dismiss on only the

jurisdictional grounds. This dismissal is without prejudice.”). Accordingly, we

VACATE the district court’s holding to the extent it dismisses the complaint on




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the merits for failure to state a claim, and REMAND with instructions that the

district court reenter an order dismissing the case for want of jurisdiction.1




1
         Because the district court ultimately did not err in dismissing Enders’s § 1983 complaint,
it also did not abuse its discretion in denying his motion for reconsideration. Region 8 Forest
Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).


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