Crenshaw-Logal v. City of Abilene
Crenshaw-Logal v. City of Abilene
Opinion of the Court
Plaintiff-appellant Zena Crenshaw-Lo-gal claims that her First Amendment rights were “chilled” when police searched a third party’s computer during a criminal investigation of that third party. The district court dismissed for lack of standing. We affirm.
I
In April 2010, nonparty Michayl Mellen was arrested in Abilene, Texas (the City), on charges of possessing child pornography. Mellen’s computer allegedly was searched and seized by City police officers pursuant to a warrant.
Crenshaw-Logal at one time was an Indiana lawyer
Crenshaw-Logal, acting pro se, filed this § 1983 action for damages against the City in June 2010. She claims that the City is “chillfing]” her First (and Fifth) Amendment rights because the City “theoretically” has “unfettered access” to the “work product material” on Mellen’s computer.
The district court dismissed Crenshaw-Logal’s complaint with prejudice. The district court held that Crenshaw-Logal lacked constitutional standing because her injury, if any, was “far too remote.” Alternatively, the district court held that Crenshaw-Logal failed to state a claim under § 1983 because she did not sufficiently identify an unlawful City custom or policy.
Crenshaw-Logal filed a Rule 60(b)(6) motion for relief from the district court’s judgment. The motion essentially restated the allegations in the complaint. The district court denied the motion, and Crenshaw-Logal appealed.
II
We review de novo a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) or for failure to state a claim under Rule 12(b)(6). Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). We review for abuse of discretion a denial of a Rule 60(b)(6) motion. Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d 204, 210 (5th Cir. 2003).
When a motion to dismiss for lack of jurisdiction “is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming, 281 F.3d at 161; In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir. 2010). Moreover, when a complaint could be dismissed for both lack of jurisdiction and failure to state a claim, “the court should dismiss only on the jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state a claim under [Rule] 12(b)(6).” Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). This practice prevents courts from issuing advisory opinions. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The practice also prevents courts without jurisdiction “from prematurely dismissing a case with prejudice.” Ramming, 281 F.3d at 161.
Ill
Article III standing is a jurisdictional prerequisite.
Crenshaw-Logal has failed to allege an injury in fact. In essence, Crenshaw-Lo-gal alleges that her speech is being chilled because the City might use communications she sent to Mellen to her detriment at some point in the future. The Supreme Court rejected this theory of standing almost forty years ago. In Laird v. Tatum, the Supreme Court held that allegations of “subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).
Here, Crenshaw-Logal has alleged nothing more than subjective, self-imposed chill. She alleges that the City “reportedly” and “theoretically” has access to communications stored on Mellen’s computer, but she does not allege that the City actually has done or is likely to do anything injurious to her with those communications. Nor does she even allege that the City has in fact read the communications. Crenshaw-Logal’s unsupported speculation that the City might use the communications to her detriment at some point in the future is a far cry from the imminent threat of particularized harm necessary to establish constitutional standing.
Although Crenshaw-Logal acknowledges that her injury is merely “theoretical ],” she suggests that “[djiscovery may confirm and accordingly nudge this case ‘across the line from conceivable to plausible.’ ” This argument puts the cart before the horse. Crenshaw-Logal does not get discovery until she pleads a plausible claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
For the reasons stated, we find that the district court properly dismissed Cren-shaw-Logal’s complaint for lack of standing. We further find that the district court did not abuse its discretion in denying Crenshaw-Logal’s Rule 60(b)(6) motion, which essentially restates the allegations in her complaint. Although a pro se litigant ordinarily is entitled to file an amended complaint before her claims are dismissed, Crenshaw-Logal never moved for leave to amend. Nor has she provided any indication in her complaint, her opposi
Although we affirm the district court’s dismissal of Crenshaw-Logal’s complaint for lack of jurisdiction, we modify the judgment. When a complaint is dismissed for lack of jurisdiction (including lack of standing), dismissal ordinarily should be without prejudice. See, e.g., In re Great Lakes, 624 F.3d at 209; Fleck & Assocs., Inc. v. Phoenix, City of, and Ariz. Mun. Corp., 471 F.3d 1100, 1106-07 (9th Cir. 2006); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006); cf. Fed.R.Civ.P. 41(b). We do not see (and the district court did not identify) any special circumstances that warrant deviation from the general rule at this point.
IV
For the reasons stated, the district court’s judgment is AFFIRMED AS MODIFIED.
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. Crenshaw-Logal has been suspended from practicing law in the state of Indiana as well as the Seventh Circuit. See Crenshaw v. Antokol, 206 Fed.Appx. 560, 565 (7th Cir. 2007).
. The complaint could be read as asserting claims under the federal Privacy Protection
. Article III standing is not to be confused with what is often loosely referred to as Fourth Amendment standing. Rakas v. Illinois, 439 U.S. 128, 138-39, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). An individual may not claim the protection of the Fourth Amendment unless she has a reasonable expectation of privacy in the place searched. Id. at 143. An individual is said to have “standing” under the Fourth Amendment if she has a reasonable expectation of privacy. See United States v. Hernandez, 647 F.3d 216, 218-20 (5th Cir. 2011); United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010). Although Article III standing and Fourth Amendment standing may be “intertwined," Fourth Amendment standing ultimately is a matter of substantive law and not a jurisdictional prerequisite. Rakas, 439 U.S. at 140, 99 S.Ct. 421; see also United States v. Maestas, 941 F.2d 273, 276 n. 2 (5th Cir. 1991); United States v. Ewing, 638 F.3d 1226, 1230 (9th Cir. 2011); United States v. Dyer, 580 F.3d 386, 390 (6th Cir. 2009); United States v. Nechy, 827 F.2d 1161, 1164-65 (7th Cir. 1987). The Supreme Court has recently cautioned courts to "proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment.” City of Ontario, Cal. v. Quon, — U.S. -, 130 S.Ct. 2619, 2629, 177 L.Ed.2d 216 (2010). Crenshaw-Logal’s
. See also Morrison v. Bd. of Educ. of Boyd Cnty., 521 F.3d 602, 609-10 (6th Cir. 2008).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.