United States District Court, D. South Carolina
Brian T. Roberts, Plaintiff,
UTC Fire & Security Americas Corporation, Inc., Defendant.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, Magistrate Judge.
T. Roberts ("Plaintiff"), proceeding pro se, brings
this civil action attempting to allege a violation of a
federal law. Plaintiff is a non-prisoner, and he files this
action in forma pauperis under 28 U.S.C. Â§ 1915. The
Complaint is subject to summary dismissal.
alleges the following facts. Defendant has harassed Plaintiff
on multiple occasions (approximately twelve) during October,
November, and December of 2015 by calling his telephone
number using "Robo Calling" and "Phone
Spoofing." [Doc. 1.] Defendant has identified itself as
"GE Home Security, " on the telephone calls, but
the calls are made by a computer (not a natural born person).
[ Id. ] Plaintiff placed his telephone number on the
"FTC Do Not Call' list" in 2011, and he has
maintained that status. [ Id. ] Therefore, he is not
supposed to receive "any telemarketing calls." [
unwanted telephone calls have caused Plaintiff physical and
emotional distress. [ Id. ] The telephone calls are
unwanted and a nuisance. [ Id. ] Despite
Plaintiff's attempts to reach a person to request
placement on an internal "do not call" list, he has
been unable to reach a person. [ Id. ]
is domiciled in South Carolina. [ Id. ] Defendant is
a corporation physically located in Farmington, Connecticut,
and it is incorporated in Delaware. [ Id. ]
Defendant purchased GE Home Security in 2009. [ Id.
on these facts, Plaintiff alleges "Defendant willfully
and intentionally violated FCR Â§ 310.4 Abusive telemarketing
acts or practices." [ Id. ] He alleges this is
a "civil action for breaches of FCR Â§ 310.4 Abusive
telemarketing acts or practices." [ Id. ]
Plaintiff seeks at least $10 million in damages. [
to the provisions of 28 U.S.C. Â§ 636(b)(1)(B), and Local
Civil Rule 73.02(B)(2)(e) DSC, the undersigned is authorized
to review the Complaint for relief and submit findings and
recommendations to the District Court. Plaintiff filed this
action pursuant to 28 U.S.C. Â§ 1915, the in forma
pauperis statute. This statute authorizes the District
Court to dismiss a case if it is satisfied that the action
"fails to state a claim on which relief may be granted,
" is "frivolous or malicious, " or "seeks
monetary relief against a defendant who is immune from such
relief." 28 U.S.C. Â§ 1915(e)(2)(B).
pro se litigant, Plaintiff's pleadings are accorded
liberal construction and held to a less stringent standard
than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per
curiam ). However, even under this less stringent
standard, the pro se pleading remains subject to summary
dismissal. The mandated liberal construction afforded to pro
se pleadings means that if the court can reasonably read the
pleadings to state a valid claim on which Plaintiff could
prevail, it should do so, but a district court may not
rewrite a petition to include claims that were never
presented, Barnett v. Hargett, 174 F.3d 1128, 1133
(10th Cir. 1999), or construct Plaintiff's legal
arguments for him, Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993), or "conjure up questions never
squarely presented" to the court, Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleading to allege
facts which set forth a claim cognizable in a federal
district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
action should be dismissed because Plaintiff fails to allege
a plausible claim upon which relief may be granted, and this
Court lacks subject matter jurisdiction. Although the Court
must liberally construe the pro se Complaint and Plaintiff is
not required to plead facts sufficient to prove his case as
an evidentiary matter in the Complaint, the Complaint
"must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007)); see also Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(explaining that a plaintiff may proceed into the litigation
process only when his complaint is justified by both law and
fact); cf. Skinner v. Switzer, 131 S.Ct.
1289 (2011) (holding that plaintiff need not pin his claim
for relief to precise legal theory).
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); see also
Nat'l Fed. of Indep. Bus. v. Sebelius, 132 S.Ct.
2566, 2576 (2012) (explaining that the federal government
possesses only limited powers). Because federal courts have
limited subject matter jurisdiction, there is no presumption
that the Court has jurisdiction. Pinkley, Inc. v. City of
Frederick, 191 F.3d 394, 399 (4th Cir. 1999).
Accordingly, a federal court is required sua sponte
to determine if a valid basis for its jurisdiction exists,
"and to dismiss the action if no such ground
appears." Bulldog Trucking, 147 F.3d 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.").
facts providing the court jurisdiction must be affirmatively
alleged in the complaint." Pinkley, Inc., 191
F.3d at 399. To this end, Federal Rule of Civil Procedure
8(a)(1) requires that the complaint provide "a short and
plain statement of the grounds for the court's
jurisdiction[.]" If, however, the Complaint does not
contain "an affirmative pleading of a jurisdictional
basis[, ] a federal court may find that ...