United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
a removal case. Plaintiff is a state prisoner. Under Local
Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this
action have been referred to the assigned United States
Magistrate Judge. This case is before the undersigned for
consideration of Plaintiff's Motion to Remand, ECF No.
12, and Defendants' Motion to Dismiss, ECF No. 5.
Factual and Procedural Background
to the stamp on the face of the pleading, Shaheen
Cabbagestalk (“Plaintiff”) filed a complaint
labeled “Tort Claim” (“state
complaint”) against the Defendants in the Court of
Common Pleas for Richland County, South Carolina on September
10, 2015. ECF No. 1-1. The case was assigned the number
2015-CP-40-5575. Id. The state complaint was
organized by Plaintiff's listing each Defendant
separately and then making factual and legal allegations
relating to that Defendant. For the most part, the state
complaint alleged improper and unhealthy conditions of
confinement, including library availability, and problems
with the prison disciplinary system. While citing to certain
South Carolina state statutes such as S.C. Code §
16-3-93 and using the terms “negligence” often,
Plaintiff also uses the terminology “cruel and unusual
punishment” and “access to court” and
“due process” and “42 U.S.C. 2000 cc
R.L.U.I.P.A.” in connection with his claims based on
library availability and loss of certain personal property.
According to Defendants, they were served with the state
complaint on October 28, 2016. ECF No. 1 at 1.
November 28, 2016, Defendants removed the state-court case to
this court, asserting that “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. Defendants also referenced
Plaintiff's use of the terms “cruel and unusual
punishment” and “due process” in the state
complaint. ECF No. 1 at 1. On December 5, 2016, Defendants
filed a Motion to Dismiss the complaint, asserting that it
failed to comply with the Federal Rules of Civil Procedure.
ECF No. 5. Because Plaintiff is proceeding pro se, a
Roseboro Order was issued on December 9, 2016,
informing him of the pending Motion to Dismiss and of the
importance of filing a response to it.
filed a response to the Motion to Dismiss, asserting that he
only intended to allege state-law claims and offering to
dismiss the RLUIPA claim and to proceed with a
“property theft issue only for state court
purposes.” ECF No. 19 at 1. In each of his filings,
Plaintiff expressed a desire to have his case heard in state
court. ECF Nos. 12, 13, 16, 19. Following review of the
parties' submissions, the undersigned construed
Plaintiff's Responses as a Motion to Remand, ECF No. 12,
and directed Plaintiff to specifically inform that court
whether he intended to pursue any federal claims under his
state complaint. ECF No. 22. Plaintiff has now responded and
states that he is “pursuing only state claims . . .
.” He specifically requests this court to “remand
[his] case back to state court.” ECF No. 27. Defendants
have not responded to the court's most recent order or to
Plaintiff's response thereto.
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). 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.”
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
where Plaintiff has specifically disclaimed any intent to
pursue a federal claim, his minimal use of the terms
“access to court” and “due process”
and “cruel and unusual punishment” are not
sufficient to require him to litigate in federal court over
his objection. 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.
However, Plaintiff explicitly states that the R.L.U.I.P.A.
claim "can be dismissed . . . ." ECF No. 19.
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. 1-1 at 2. Plaintiff specifically
disclaims any intent to pursue a federal claim. ECF Nos. 16,
19, 27. Because of the requirement that this court strictly
construe its removal jurisdiction and because Plaintiff, as
the master of his Complaint, specifically and clearly
disclaims any intent to pursue a federal claim, this case
should be remanded to the Court of Common Pleas for Richland
County, South Carolina. As the case is recommended for
remand, the pending Motion to Dismiss becomes moot.
based on the foregoing, it is recommended that the District
Court remand this case to the Court of Common Pleas for
Richland County, South Carolina. It is further recommended
that the District Court deny Defendant's Motion to
Dismiss, ECF No. 5, as moot.
parties' attention is directed to the important notice on
the following page.
of Right to File Objections to Report ...