United States District Court, D. South Carolina
Kaymani D. West United States Magistrate Judge.
case is before the court for consideration of Defendants'
Motion to Dismiss, ECF No. 5, and Motion to Strike, ECF No.
20. This case was originally filed in the Court of Common
Pleas for Richland County, South Carolina and was given this
case number: No. 2015-CP-40-05575. On November 28, 2016, this
case was removed to this court by Defendants based on
assertions that Plaintiff is alleging “claims and
issues of federal law.” ECF No. 1 at 1. Defendants
filed a Motion to Dismiss on December 5, 2016, ECF No. 5.
Plaintiff filed an Objection and Response to the Motion to
Dismiss on December 20, 2016. ECF Nos. 12, 13. Defendants
filed a Reply on January 3, 2017. ECF No. 15. Plaintiff filed
a document docketed as a Sur Reply on December 29, 2016. ECF
No. 16. Defendants filed a Motion to Strike the Sur Reply on
January 26, 2017. ECF No. 20.
court has an obligation to liberally construe pro se
pleadings. Erickson v. Pardus, 551 U.S. 89, 94
(2007). In accord with that obligation, Plaintiff's
Objection, in which he states that his case is “a tort
and I demand it be stayed in the Courts of Common Pleas Court
as it was, ” ECF No. 12, is liberally construed as a
Motion to Remand. The Clerk of Court is being instructed to
docket it as such. Furthermore, the contents of the document
now docketed as a Sur Reply indicate that they are more
properly considered as supplemental argument in support of
the Motion to Remand. Thus, the Clerk of Court is being
directed to docket that document as an attachment to the
Motion to Remand.
light of the Motion to Remand, it is necessary to obtain
additional information from Plaintiff before the court may
consider the Defendants' pending Motion to Dismiss.
federal district court may consider the issue of its
subject-matter jurisdiction at any time in the process of a
case. See, e.g., 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.”);
Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (citing
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S.
379, 382 (1884)) (same); Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 552 (6th Cir. 2008) (same). In
the case of the court's removal jurisdiction, courts have
recognized that “[b]ecause removal jurisdiction raises
significant federalism concerns, [courts] must strictly
construe removal jurisdiction.” Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.
1994) (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-09 (1941)); see also Lupo
v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d
Cir. 1994) (“In light of the congressional intent to
restrict federal court jurisdiction, as well as the
importance of preserving the independence of state
governments, federal courts construe the removal statute
narrowly, resolving any doubts against removability.”);
Cohn v. Charles, 857 F.Supp.2d 544, 547 (D. Md.
2012) (“Doubts about the propriety of removal are to be
resolved in favor of remanding the case to state
court.”); Cheshire v. Coca-Cola Bottling
Affiliated, Inc., 758 F.Supp. 1098, 1102 (D.S.C. 1990)
(collecting cases holding that removal statutes are to be
construed against removal jurisdiction, and in favor
of remand). Removability is determined as of the time of
removal. Higgins v. E.I. DuPont de Nemours &
Co., 863 F.2d 1162, 1166 (4th Cir. 1988), and the
removing party has the burden of showing that removal was
proper. Mulcahey, 29 F.3d at 151. “If federal
jurisdiction is doubtful, a remand is necessary.”
it is well settled federal law in the removal area that the
plaintiff is the master of his complaint. Pinney v.
Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005); see
also Negron-Fuentes v. UPS Supply Chain Solutions, 532
F.3d 1, 6 (1st Cir. 2008); Addison v. Charleston County
Public Defenders, No. 4:11-2936-CMC-JDA, 2011 WL
6937608, at *2 (D.S.C. Dec 08, 2011). The fact that a
complaint is filed by prisoner and is based on facts arising
from prison conditions does not invariably show that claims
are “causes of action under the United States
Constitution and 42 USC §1983.” ECF No. 1.
Instead, as the master of his complaint, even a state
prisoner claiming violations of some of his rights can decide
to pursue issues in state court, relying on state law and
without reliance on federal statutes, assuming the rights
claimed are also protected by state constitutions, rules,
and/or statutes. Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 n.7 (1987); see, e.g., McBrearty
v. Ky. Comty., Tech. College Sys., No. CIV.A.
06-CV-197KSF, 2006 WL 2583375, at *6 (E.D. Ky. Sept.7, 2006)
(“Where a plaintiff chooses to assert only state law
claims, recharacterizing it as a federal claim is generally
removed this case to United States District Court, asserting
that Plaintiff is alleging “claims and issues of
federal law, ” specifically referencing Plaintiff's
citations to the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”), 42 U.S.C.
§§ 2000cc. If Defendants' assertions are true,
they would show subject-matter jurisdiction over
Plaintiff's claims in this court. ECF No. 1. However,
Plaintiff indicates a desire to dismiss to RLUIPA claim and
to proceed with a “property theft issue only for state
court purposes.” ECF No. 19 at 1. He ardently asserts
that only a tort claim was intended and expresses a desire to
have his case heard in state court. ECF Nos. 12, 13, 16, 19.
of Plaintiff's state court complaint reveals some minimal
use of words such as “cruel and unusual
punishment” and “access to court” and
“due process” often associated with claims under
certain federal constitutional amendments. However, the same
(or very similar) words are also used in connection with the
sections of the South Carolina Constitution. See
S.C. Const., art. 1 §§ 2, 3, 15. As noted by
Defendants in their Notice of Removal, there is one specific,
unambiguous reference to a federal statute -RLIUPA, 42 U.S.C.
§ 2000cc-- but no unambiguous reference to any specific
federal constitutional violation. Instead, Plaintiff
specifically states in his state court complaint that his
claims against the Defendants are “a tort claim”
and he cites to a South Carolina statute: § 16-3-920.
S.C. Code Ann. (conspiracy to commit kidnapping) as the basis
for a conspiracy claim against “the warden.” ECF
No. 1-1at 2.
the required liberal construction rules applicable to pro
se litigants, Plaintiff's clear objections to
removal and statements about wanting to stay in state court
renders any passing reference in the state court complaint to
one federal statute, now disclaimed, and use of words
commonly associated with certain kinds of federal
constitutional claims ambiguous.
based on the foregoing, IT IS ORDERED that the Clerk of Court
shall docket the document currently docketed at ECF No. 12 as
a Motion to Remand. The Clerk of Court shall also docket the
documents currently docketed at ECF Nos. 16 and 19 as
attachments to the Motion to Remand.
FURTHER ORDERED that Plaintiff shall advise the court, in
writing, within fourteen (14) days of the date of this Order
whether, in his state court complaint, (1) he is pursuing any
claims for violations of his federal constitutional rights
pursuant to 42 U.S.C. § 1983 or any other kinds of
claims under any other federal statute, constitutional
provision, or treaty in this action, or (2) if he is
only pursuing claims under the South Carolina
Constitution and/or other South Carolina state laws, or (3)
if he is pursuing claims under both South Carolina
and federal law.
Plaintiff advises the court that he is only pursuing
claims under South Carolina law, this case will be
recommended for remand to state court. If Plaintiff advises
the court that he is pursuing only federal claims
or both federal and ...