United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE.
a civil action filed by a pro se 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 court for
consideration of Plaintiff's unopposed Motion Motion to
Remand, ECF No. 53.
case was removed from state court by Defendant Jones on July
14, 2017. ECF No. 1. At the time of removal, the state court
complaint alleged numerous First, Eighth, and Fourteenth
Amendment claims based on the conditions of Plaintiff's
confinement at the Lexington County Detention Center. The
complaint also asserted state-law based claims for
negligence/gross negligence. Plaintiff filed a Motion to
Remand, ECF No. 7, which was denied. ECF No. 17. On August 7,
2017, Plaintiff filed an Amended Complaint as a matter of
course, adding an additional Defendant, Bradley Pogue, and
asserting additional constitutional claims against the
attorney who was prosecuting then-pending criminal charges
against Plaintiff. ECF No. 18. The original Defendant, Kevin
Jones, filed a Motion for Summary Judgment on August 15,
2017. ECF No. 27. Plaintiff responded to the Motion for
Summary Judgment on September 7, 2017. ECF No. 43.
August 17, 2017, service was issued for the new Defendant
added by the Amended Complaint, but he has not yet appeared
in the case. ECF No. 31. On September 2, 2017, Plaintiff
filed a Motion for Leave to Amend his Amended Complaint,
seeking to add an additional party. He did not attach a
proposed Amended Complaint to his Motion. ECF No. 41.
Defendant Jones did not respond to that Motion. On October 5,
2017, Plaintiff filed a Motion to Amend the Amended
Complaint. ECF No. 52. In connection with that Motion,
Plaintiff provided a proposed second amended complaint that
shows only one defendant, Lexington County. The Motion to
Amend was granted on November 8, 2017and the Second Amended
Complaint was docketed. ECF No. 61. Neither Defendant Jones
nor Defendant Pogue is mentioned in the Second Amended
Complaint, the allegations are about confrontations that
Plaintiff had with several Lexington County Detention Center
officers, and there are no federal claims stated therein.
Instead, the Second Amended Complaint alleges only claims for
“gross negligence, pain and suffering, mental anguish,
and humiliation” under the South Carolina Torts Claim
Id. Plaintiff filed a Motion to Remand at the same
time he filed his Motion to Amend. ECF No. 53.Defendant Jones
did not respond to the Motion to Remand and the time for any
response has now passed.
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded. 28 U.S.C. § 1447(c). A federal district court
must continually re-evaluate the alleged basis for its
jurisdiction throughout the course of the litigation. As
such, there is no time bar to challenging jurisdiction during
the pendency of the action. Indeed, 28 U.S.C. § 1447(c)
provides, in pertinent part: “(i)f at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded.” (emphasis added). The issue of
subject-matter jurisdiction and remand may also be reviewed
by the court sua sponte.
master of his complaint, even a prisoner, as here, 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.
See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
n.7 (1987); Addison v. Charleston Cty. Public
Defenders, No. 4:11-2936-CMC-JDA, 2011 WL 6937608, at *2
(Dec. 8, 2011), report and recommendation adopted,
2012 WL 10499 (D.S.C. Jan. 3, 2012); Brave v. South
Carolina Highway Dept., No. 4:07-3457-HMH-TER, 2008 WL
2001913, *2 (D.S.C. May 06, 2008); see, e.g.,
McBrearty v. Ky. Comty., Tech. College Sys., No.
CIV.A. 06-CV-197KSF, 2006 WL 2583375, *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 prohibited”). Remand is favored in cases
turning primarily on questions of state law, because
“[n]eedless decisions of state law [by federal courts]
should be avoided both as a matter of comity and to promote
justice between the parties, by procuring for them a
surer-footed reading of applicable law.” United
Mine Workers of America v. Gibbs, 383 U.S. 715, 729
(1966). Thus, in a case where federal claims are eliminated
before trial, “the balance of factors . . . will point
toward declining to exercise jurisdiction over the remaining
state-law claims.” Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988).
regard to Plaintiff's use of the pleading-amendment
process to eliminate all federal questions in this case, in
Cohill, the United States Supreme Court stated that
the concern for forum manipulation through deletion of
federal claims from the complaint “hardly justifies a
categorical prohibition on the remand of cases involving
state-law claims regardless of whether the plaintiff has
attempted to manipulate the forum and regardless of the other
circumstances in the case.” 484 U.S. at 357. That Court
held that “a district court has discretion to remand to
state court a removed case involving pendent claims upon a
proper determination that retaining jurisdiction over the
case would be inappropriate.” Id. Manipulation
of the forum by amendment of the complaint, the court said,
is a factor for the court to consider, but not a dispositive
one. See Id. (“[A] district court can consider
whether the plaintiff has engaged in any manipulative tactics
when it decides whether to remand a case. If the plaintiff
has attempted to manipulate the forum, the court should take
this behavior into account in determining whether the balance
of factors . . . support a remand.”). Courts in this
circuit have sometimes remanded cases despite the appearance
of manipulation. See, e.g., Fleeman v. Toyota Motor
Sales, 288 F.Supp.2d 726, 729 (S.D. W.Va. 2003)
(remanding and noting consistent rejection of Brown in favor
of Gibbs in Fourth Circuit cases); Kimsey v.
Snap-On Tools Corp., 752 F.Supp. 693, 695 (W.D. N.C.
1990) (remanding and noting that “[Gibbs ]
eviscerated the holding of Brown” )
(“While Plaintiffs may be attempting to avoid federal
jurisdiction by amending the complaint, . . . such a reason
‘. . . does not diminish the right of these plaintiffs
to set the tone of their case by alleging what they
choose.' ”) (quoting McGann v. Mungo, 578
F.Supp. 1413, 1415 (D.S.C. 1982)). In has been held that the
manipulation factor “matters little compared to the
interest of comity and the avoidance of ‘[n]eedless
decisions of state law' embraced in
Gibbs.” Taylor v. Giant Food, Inc.,
No. CIV.A. DKC 2004-0710, 2004 WL 2191715, at *3 (D. Md.
Sept. 13, 2004) (quoting United Mine Workers v.
Gibbs, 382 U.S. at 729); see also Fleeman v. Toyota
Motor Sales, U.S.A., Inc., 288 F.Supp.2d 726, 729 (S.D.
W.Va. 2003) (remanding case despite the defendant's
assertion that the plaintiffs' amended complaint that
dismissed federal claim after removal was filed to manipulate
because remand is favored in cases turning primarily on
questions of state law, Plaintiff's intent in amending
his Amended Complaint does not “diminish [his]
right” to allege what he chooses. Plaintiff's
single citation to one federal statute in the jurisdiction
section of Second Amended Complaint does not overcome the
remainder of the pleading, which clearly indicates
Plaintiff's intent to raise only state-law-based claims
against Lexington County only.The undersigned finds that remand
to state court is appropriate because Plaintiff's Second
Amended Complaint eliminates all federal claims against the
original Defendants. The pleading clearly states that is
brought under the South Carolina Torts Claim Act and there
are no allegations of federal constitutional violations or
violations of any federal statute or treaty. Therefore,
federal jurisdiction is no longer evident on the face of the
operative pleading and remand is required under 28 U.S.C.
it is recommended that Plaintiffs unopposed Motion to Remand
be granted and that this case be remanded to the Lexington
County Court of Common Pleas, case number 2017-CP-32-01993.
It is also recommended that Defendant Jones' Motion for
Summary Judgment, ECF No. 27, be denied as moot as he is no
longer named as a Defendant in this action.
parties' attention is directed to the important notice on
the next page.
of Right to File Objections to Report ...