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Wazney v. Wazney

United States District Court, D. South Carolina, Greenville Division

March 9, 2018

Sharon Wazney, Plaintiff,
v.
Robert Wazney, #363679, Defendant.

          REPORT AND RECOMMENDATION

          Kevin F. McDonald, United States Magistrate Judge.

         The defendant, Robert Wazney (“Defendant”), proceeding pro se, filed a notice of removal that purports to remove an action for divorce, initially filed in Sumter County Family Court and appealed to the South Carolina Court of Appeals, to federal court (doc. 1). Defendant is a state prisoner, and has filed this action in forma pauperis under 28 U.S.C. § 1915. This matter is before the assigned United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.). For the reasons that follow, the undersigned recommends that the District Court remand this case for lack of subject matter jurisdiction.

         BACKGROUND

         The plaintiff, Sharon Wazney (“Plaintiff”) initially filed for divorce from Defendant on January 10, 2014 in Sumter County Family Court; she re-filed the action on January 15, 2015 (Wazney v. Wazney, 2015-DR-43-0046) (doc. 1 at 2, ¶ 1). In April, 2015, Defendant proceeded to trial on criminal charges, and was convicted (doc. 1 at 2, ¶ 2). The divorce action continued through 2017 (doc. 1 at 4, ¶ 8). On October 20, 2017, Defendant filed a “Notice of Removal” with this court, attaching a number of state court documents (docs. 1 and 1-1; see also Envelope, doc. 1-5 at 1). Defendant also filed a motion for leave to proceed in forma pauperis (doc. 2). On October 13, 2017, and November 28, 2017, the court issued orders to Defendant instructing him to bring the case into proper form (docs. 6, 8). On December 14, 2017, Defendant filed a motion for the appointment of counsel, which the court denied (docs. 10, 16). On February 8, 2018, Defendant filed a motion for “Leave to File Amended Complaint I, ” “not to add or include more or different facts, but to make clear of what facts exist within the existing complaint” (doc. 17).

         Defendant's Notice of Removal alleges:

A) Federal question jurisdiction [exists] because a federal question has manifested upon the Defendants [sic] notice of Remittiter [sic] dated September 22, 2017 (Ext. A p 4-5) and Order dated September 29, 2017 (Exhibit C); and
B) Denial of civil rights, because the Defendant is denied or cannot enforce in the Courts of South Carolina a right under law providing for the equal civil rights of citizens of the United States, or within the jurisdiction thereof; and for acts under color of authority derived from laws providing for equal rights, and/or for refusing to do such act on the ground that it is inconsistent with such laws which has manifested upon the Defendants [sic] notice of Remittiter [sic] dated September 22, 2017 and Order dated September 29, 2017.

(Doc. 1 at 1). Defendant appears to claim that his due process rights have been violated

in the manner of denial of acknowledgment and/or hearing of [his] Motions in the Sumter County Family Court and South Carolina Court of Appeals where the Defendant has challenged actions in the lower Courts and the lower Courts have not acted to hear those challenges notwithstanding the Defendants [sic] Complaints and requests and instead have ruled without hearing systematically to the States [sic] highest Court . . . .

(Doc. 1 at 2-3, ¶¶ 4-5). Furthermore, Defendant “feels racial discrimination may play a role in the ongoing due process violations made by the State” and claims he is being denied access to the courts pursuant to 42 U.S.C. § 1997(a) (doc. 1 at 2, ¶ 4; doc. 1 at 3, ¶ 6).

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review the Complaint for relief (or, as here, the Notice of Removal) and submit findings and recommendations to the District Court. Defendant filed this action pursuant to 28 U.S.C. § 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. § 1915(e)(2)(B). Further, Defendant is a prisoner under the definition in 28 U.S.C. § 1915A(c). He “seeks redress from a governmental entity or officer or employee of a governmental entity[.]” 28 U.S.C. § 1915A(a). As discussed more fully below, Defendant specifically claims that his due process rights have been violated by actions taken by the Sumter County Family Court and South Carolina Court of Appeals (doc. 1 at 2-3, ¶¶ 4-5).

         As a pro se litigant, Defendant'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 requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set ...


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