United States District Court, D. South Carolina
Eugene P. Harrison, a/k/a Eugene Paul Harrison, Sr., Plaintiff,
Jill Woodton, Manager; Ashantae Thompson, Manager, Lender Loan, Defendants.
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge
a civil action filed by the Plaintiff, Eugene P. Harrison,
pro se, and is before the Court for pre-service review. See
28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation
Reform Act, 105 F.3d 1131, 1134 (6th Cir.1997) [pleadings by
non-prisoners should also be screened]. Under established
local procedure in this judicial district, a careful review
has been made of the pro se complaint herein pursuant to the
procedural provisions of § 1915, and in light of the
following precedents: Denton v. Hernandez, 504 U.S.
25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989);
Haines v. Kerner, 404 U.S. 519 (1972); Nasim v.
Warden, Maryland House of Corr., 64 F.3d 951 (4th
Cir.1995) (en banc); and Todd v. Baskerville, 712
F.2d 70 (4th Cir.1983).
1915 permits an indigent litigant to commence an action in
federal court without paying the administrative costs of
proceeding with the lawsuit. However, to protect against
possible abuses of this privilege, the statute allows a
district court to dismiss a case upon a finding that the
action "is frivolous or malicious, " "fails to
state a claim on which relief may be granted, " or
"seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B). A
finding of frivolousness can be made where the complaint
"lacks an arguable basis either in law or in fact."
Denton v. Hernandez, 504 U.S. at 31. Hence, under
§ 1915(e)(2)(B), a claim based on a meritless legal
theory may be dismissed sua sponte.
Neitzke v. Williams, 490 U.S. 319. Further, while
this Court is also required to liberally construe pro se
documents, holding them to a less stringent standard than
those drafted by attorneys, Erickson v. Pardus, 551
U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)), 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
currently cognizable in a federal court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387 (4th Cir.1990).
Such is the case here.
a frequent filer of litigation in this Court,  originally filed
a Complaint in which he failed to state a basis for
jurisdiction in this Court. See Complaint, ECF No.. In an
order entered August 15, 2017, Plaintiff was informed that he
failed to state his basis for jurisdiction (and the general
bases for jurisdiction in this Court were briefly explained
to him), that it was unclear what claim(s) he was asserting
against the named Defendant(s), and that he failed to state
what relief he was requesting. ECF No. 9. He was directed to
complete a "Complaint for a Civil Case" form to
correct these deficiencies (id.), and on August 22, 2017, he
filed his Supplemental Complaint (ECF No. 1-2).
Supplemental Complaint, Plaintiff alleges that on June
Defendant Jill Woodton knocked on the door of his residence,
opened the door and said "hello, " closed the door,
placed an envelope in the door, got into a white Nissan
Maxima, and fled. Thereafter Plaintiff "chased" the
vehicle on highway 278, he saw a "gamecock" license
tag, and he went back to his house. Plaintiff claims that his
daughter and his fiance's children heard Defendant
Woodton when she opened the door of the house. Plaintiff
claims that Defendant Woodton "unlawfully entered and
left the house." ECF No. 1-2 at 5. He requests that
Defendant Woodton's "licience to be indefintely
remove from being a Loan Officer, for punitive damages $250,
000.00." Id. (errors in original). Plaintiff
also requests that Defendant Ashantae Thompson be held
accountable for supporting Woodton's actions, Thompson be
removed from being a loan officer, and an award of $50, 000
in punitive damages be granted for his pain and suffering.
Complaint filed in this case is subject to summary dismissal
without service of process because it fails to state a claim
which this Court may consider under its federal question
jurisdiction, see 28 U.S.C. § 1331, or its diversity
jurisdiction, see 28 U.S.C. § 1332. In his Supplemental
Complaint, Plaintiff checked a box indicating that his basis
for federal court jurisdiction was federal question
jurisdiction pursuant to 28 U.S.C. § 1331. However, in
response to the question asking him to identify his basis for
federal question jurisdiction by listing the specific federal
statutes, federal treaties, and/or provisions of the Untied
States Constitution at issue in this case, Plaintiff merely
listed "Unlawful Entry/Harassment/False Statement."
ECF No. 1-2 at 3. Such claims do not arise "under the
Constitution, laws, or treaties of the United States" as
required for federal question jurisdiction pursuant to §
1331. See 28 U.S.C. § 1331.
extent that the Complaint or Supplemental Complaint attempts
to state a constitutional claim under 42 U.S.C. § 1983,
which would constitute "federal question"
jurisdiction, in order to state a cause of action under
§ 1983, a plaintiff must allege that: (1) the
defendant(s) deprived him of a federal right, and (2) did so
under color of state law. American Mfr. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999); Gomez v.
Toledo, 446 U.S. 635, 640 (1980); see also Hall v.
Ouillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). There
is no allegation that the Defendants here have acted under
color of state law. Both are private citizens employed by a
private business, not public employees. Purely private
conduct such as that alleged in this case, no matter how
wrongful, injurious, fraudulent, or discriminatory, is not
actionable under 42 U.S.C. § 1983, or under the
Fourteenth Amendment, the two most common provisions under
which persons come into federal court to claim that others
have violated their constitutional rights. See Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936 (1983); Burton
v. Wilmington Parking Auth., 365 U.S. 715, 721 (1961).
the United States Constitution regulates only the government,
not private parties, a litigant asserting a § 1983 claim
that his constitutional rights have been violated must first
establish that the challenged conduct constitutes "state
action." See, e.g., Blum v. Yaretsky, 457 U.S.
991, 1002 (1982). To qualify as state action, the conduct in
question "must be caused by the exercise of some right
or privilege created by the State or by a rule of conduct
imposed by the State or by a person for whom the State is
responsible, " and "the party charged with the
[conduct] must be a person who may fairly be said to be a
state actor." Lugar, 457 U.S. at 937; see
U.S. v. Int'l Bhd. of Teamsters, Chauffeurs,
Warehousemen and Helpers of Am., AFL-CIO, 941 F.2d 1292
(2d Cir.1991). Although a private individual or corporation
can act under color of state law, his, her, or its actions
must occur where the private individual or entity is "a
willful participant in joint action with the State or its
agents." Dennis v. Sparks, 449 U.S. 24, 27-28
(1980). There is no allegation here to suggest that the
Defendants' actions were anything other than purely
private conduct. Thus, Plaintiff has failed to state a claim
under § 1983.
has not alleged that this Court has jurisdiction based on
diversity jurisdiction, but even if he had, there is no
diversity jurisdiction in this case. A district court may
have jurisdiction of a civil action "where the matter in
controversy exceeds the sum or value of $75, 000...and is
between-(1) citizens of different States...". 28 U.S.C.
§ 1332. However, Plaintiff has not alleged complete
diversity of the parties. See Owen Equipment &
Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978)
[Complete diversity of parties means that no party on one
side may be a citizen of the same State as any party on the
other side]. In order to maintain an action based upon
diversity jurisdiction, complete diversity between the
plaintiffs and defendants must exist at the time the
complaint is filed. Martinez v. Duke Energy Corp.,
130 Fed.Appx. 629, 634 (4th Cir. 2005). Here, diversity is
lacking as Plaintiff and all Defendants are citizens of South
Carolina. See ECF No. 1-2 at 2.
Plaintiff may also be attempting to assert claims under state
law. However, if the above recommendations are adopted with
respect to Plaintiffs federal claims, only Plaintiffs state
law claims would survive, and federal courts are allowed to
hear and decide state-law claims only in conjunction with
federal-law claims, through the exercise of
"supplemental jurisdiction." See 28 U.S.C.
§1367; Wisconsin Dep't of Corrs. v.
Schacht, 524 U.S. 381, 387 (1998). Since, for the
reasons already discussed, Plaintiff has asserted no valid
federal claim and has not alleged diversity jurisdiction,
this Court should not exercise supplemental jurisdiction over
Plaintiffs state law claims. See 28 U.S.C. § 1367; see
also United Mine Workers v. Gibbs, 383 U.S. 715, 726
(1966); Tigrett v. Rector and Visitors of the Univ. of
Va., 290 F.3d 620, 626 (4th Cir. 2002) [affirming
district court's dismissal of state law claims when no
federal claims remained in the case]. Lovern v.
Edwards, 190 F.3d 648, 655 (4th Cir. 1999) ["[T]he
Constitution does not contemplate the federal judiciary
deciding issues of state law among non-diverse
on the foregoing, it is recommended that the Court dismiss
Plaintiffs Complaint at this time without prejudice and