United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
MARY GORDON BAKER, Magistrate Judge.
Linda Saylor-Marchant ("Plaintiff") is proceeding pro se and has paid the full filing fee in this civil action. She complains that pursuant to court proceedings in New York, the defendants have placed her adult daughter's three minor children in foster care there. (DE# 1). She asks this Court to "order the children and their biological mother back to South Carolina" and to "order the city of New York to pay the $1, 000, 000.00 in damages." ( Id. at 6). Also pending is Plaintiff's request for a "Temporary Restraining Order" ("TRO") against the defendants. (DE# 5). She demands visitation, wants this Court to "remove and arrest caseworkers for taking and placing non-resident children in foster care without contacting blood relatives, " wants this Court to "deal with the Queens Family Court and Administration of Children and Family services accordingly for not addressing and allowing this unethical behavior, " wants the children placed in her (or a family member's) care, and wants "the City of New York fined for their (sic) agency's negligence." ( Id. ). She complains of the New York court's application of New York law. (DE# 1 at 3-4).
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 73.02(B)(2)(e), the Magistrate Judge is authorized to make a Report and Recommendation in this case. After careful review, the undersigned recommends that the Complaint be summarily dismissed without prejudice for lack of subject matter jurisdiction, and without issuance and service of process, for the following reasons:
I. Liberal Construction of Pro se Pleadings
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). However, "[t]he special judicial solicitude' with which a district court should view... pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir.1990). Giving "liberal construction" does not mean that the Court can ignore a petitioner's clear failure to allege facts that set forth a cognizable claim. United States v. Wilson, 699 F.3d 789, 797 (4th Cir.2012), cert. denied, 133 S.Ct. 2401 (2013). "Principles requiring generous construction of pro se complaints... [do] not require... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) cert. denied, 475 U.S. 1088 (1986).
II. 28 U.S.C. § 1915 inapplicable
Initially, the Magistrate Judge observes that pre-screening under 28 U.S.C. § 1915 is inapplicable in pro se, non-prisoner, fee-paid cases (such as the present case). See Chong Su Yi v. Social Sec. Admin., 554 F.Appx. 247 (4th Cir. 2014); Bardes v. Magera, Case No. 2:08-487-PMD-RSC, 2008 WL 2627134 at *8-10 (D.S.C. June 25, 2008). Therefore, the Magistrate Judge is not conducting initial review pursuant to 28 U.S.C. § 1915.
A. Subject Matter Jurisdiction Lacking
However, payment of the full filing fee does not cure a lack of subject matter jurisdiction. See, e.g., Myers v. McKnight, Case No. 2:10-cv-3259-RMG-RSC, 2011 WL 221867 at *7 (D.S.C. Jan. 5, 2011) (dismissing suit because it concerned matters exclusively within the jurisdiction of state probate courts); Myers v. Kaufmann, Case No. 2:10-cv-2081-RMG-RSC, 2010 WL 4338097, *8 n.1 (D.S.C. Sept. 16. 2010) (same, dismissing suit challenging guardianship). This Court has the inherent authority to review a Complaint to ensure that subject matter jurisdiction exists. See Davis v. Wilson, Case No. 9:13-cv-382-GRA-BHH, 2013 WL 1282024, at *1 (D.S.C. Mar. 8, 2013), adopted by 2013 WL 1282024 (D.S.C. March 27, 2013), aff'd by 539 F.Appx. 145 (4th Cir. 2013), cert. denied by 134 S.Ct. 940 (2014), reh'g denied, 134 S.Ct. 1371 (2014).
Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir.1998). A federal district court may sua sponte consider whether a valid basis for its jurisdiction exists and must "dismiss the action if no such ground appears." Id. at 352; see also 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."). Although the absence of subject matter jurisdiction may be raised at any time during the case, determining jurisdiction at the outset of the litigation is the most efficient procedure. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.1999); and see, e.g., Cuyler v. Dept. of Army, Case No. 3:14-cv-3228-CMC-SVH, 2014 WL 4635570 (D.S.C. Sept. 15, 2014) (summarily dismissing without issuance of summons).
Fed.R.Civ.P. 8(a)(1) requires that the complaint provide "a short and plain statement of the grounds for the court's jurisdiction." See also McNutt v. Gen. Motors Acceptc. Corp., 298 U.S. 178, 189 (1936). "[P]laintiffs must affirmatively plead the jurisdiction of the federal court." Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir.), cert. denied, 474 U.S. 945 (1985). Plaintiff's Complaint fails to allege any basis for subject matter jurisdiction. Even liberally construed, the Complaint fails to allege facts that would provide any basis for federal question jurisdiction. The Complaint is therefore subject to summary dismissal. See Brunson v. United States, Case No. 3:14-cv-2540-JFA-PJG, 2014 WL 4402803 (D.S.C. Sept. 3, 2014) (summarily dismissing complaint because allegations were insufficient to establish subject matter jurisdiction); Carter v. Ervin, Case No. 0:14-cv-865-TLW, 2014 WL 2468351 (D.S.C. June 2, 2014) (summarily dismissing complaint without prejudice, and without issuance and service of process, for lack of subject matter jurisdiction), appeal dismissed by 585 F.Appx. 98 (4th Cir. 2014); Darby v. Cty. of Orangeburg, Case No. 5:12-cv-2351-CMC-PJG, 2012 WL 4890221 (D.S.C. Sept. 26, 2012), adopted by 2012 WL 4891581 (D.S.C. Oct. 15, 2012) (summarily dismissing fee-paid pro se case for lack of federal question subject matter jurisdiction).
The Complaint does not refer to any federal statute, only vaguely refers to any constitutional rights, and does not allege any facts that would suggest any cognizable federal claim. Although courts liberally construe pro se pleadings, the Fourth Circuit Court of Appeals has instructed that courts should not "ignore a petitioner's clear failure to allege facts that set forth a cognizable claim." Wilson, 699 F.3d at 797. In her Complaint, Plaintiff alleges that "[n]ine months have passed and Catholic Guardian Services and ACS refuse to release three children." (DE# 1 at 4). She vaguely contends that "this is not in compliance with Federal Law [and] New York State law and polices (sic)." ( Id. ). She complains that she "exercised her Constitutional right - Freedom of Speech by contacting elected officials and agency representatives in both states informing them about the case and asking for assistance..." ( Id. ). Merely invoking the Constitution is insufficient to confer subject matter jurisdiction where the facts alleged do not support a federal claim. See Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012) (holding that complaint's allegations lacked specificity and did not involve any federal controversy) (quoting Oneida Indian Nation of N.Y. v. Cty. of Oneida, 414 U.S. 661, 666 (1974)); Gibson v. Chaplin, Case No. 3:13-cv-2490-JFA-PJG, 2013 WL 6150782 (D.S.C. Nov. 21, 2013) ("this court does not have subject matter jurisdiction over this case [because]... the allegations contained in the complaint are insufficient to show that the case in one arising under the Constitution, laws, or treaties of the United States").
Diversity jurisdiction would also provide no basis for subject matter jurisdiction here. "The federal courts have long held that diversity jurisdiction does not include the power to grant divorces, determine alimony or support obligations, or determine child custody rights." Wasserman v. Wasserman, 671 F.2d 832 (4th Cir. 1982), cert. denied, 459 U.S. 1014 (1982) (discussing the "domestic relations exception" to federal jurisdiction); Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980) (same). Plaintiff's Complaint seeks custody of her three grandchildren. As Plaintiff's ...