United States District Court, D. South Carolina, Aiken Division
REPORT AND RECOMMENDATION
F. McDonald United States Magistrate Judge.
plaintiff, proceeding pro se, brings this civil
action asserting a claim alleging gross negligence. The
plaintiff is a non-prisoner, and he files this action in
forma pauperis under 28 U.S.C. § 1915. Pursuant to
the provisions of 28 U.S.C. §636(b), and Local Civil
Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized
to review the complaint for relief and submit findings and
recommendations to the District Court. The complaint is
subject to summary dismissal.
plaintiff alleges that he suffered injuries while loading
household waste into a compactor at the landfill (doc. 1 at
3). He states that the incident occurred when he slipped and
fell due to water and oil that had pooled up near the
compactor, which he attributes to poor grounds keeping
(id.). With his complaint he files a print-out of
his auto policy declarations from Nationwide Insurance, along
with correspondence showing that his insurance claim was
denied. (doc. 1-1, pp. 1-4). He also provides copies of
medical records, along with a statement that he is suing for
$20, 000, 000.00 (doc. 1-1 through 3).
plaintiff 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). As a pro se litigant, the
plaintiff'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 mandated liberal
construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so, but a district court may not rewrite a petition to
include claims that were never presented, Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or
construct a plaintiff's legal arguments for him,
Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir.
1993), or “conjure up questions never squarely
presented” to the court, Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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 cognizable in a federal
district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
courts are of limited jurisdiction, “constrained to
exercise only the authority conferred by Article III of the
Constitution and affirmatively granted by federal
statute.” In re Bulldog Trucking, Inc., 147
F.3d 347, 352 (4th Cir. 1998); see also Nat'l Fed. of
Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2576 (2012)
(explaining that the federal government possesses only
limited powers). Because federal courts have limited subject
matter jurisdiction, there is no presumption that the Court
has jurisdiction. Pinkley, Inc. v. City of Frederick,
MD., 191 F.3d 394, 399 (4th Cir. 1999). “[T]he
facts providing the court jurisdiction must be affirmatively
alleged in the complaint.” Pinkley, Inc., 191
F.3d at 399. To this end, Federal Rule of Civil Procedure
8(a)(1) requires that the complaint provide “a short
and plain statement of the grounds for the court's
jurisdiction[.]” If, however, the complaint does not
contain “an affirmative pleading of a jurisdictional
basis[, ] a federal court may find that it has jurisdiction
if the facts supporting jurisdiction have been clearly
pleaded.” Pinkley, Inc., 191 F.3d at 399.
plaintiff's complaint raises a federal question, then
this Court may have subject matter jurisdiction over the
action pursuant to 28 U.S.C. § 1331. A federal question
relates to an action “arising under the Constitution,
laws, or treaties of the United States.” In re
Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th
Cir. 2006) (internal quotation marks and citation omitted);
see also Holloway v. Pagan River Dockside Seafood,
Inc., 669 F.3d 448, 453 (4th Cir. 2012)
(“[S]ubject matter jurisdiction relates to a federal
court's power to hear a case . . . and that
power is generally conferred by the basic statutory grants of
subject matter jurisdiction.”). Here, liberally
construing the complaint, this court does not glean any
allegation of a violation of federal law. Therefore, the
court does not have jurisdiction over this action pursuant to
a question of federal law.
plaintiff may file a state law claim (like the gross
negligence claim here) in a federal court under the diversity
statute, 28 U.S.C. § 1332, if that statute's
requirements are satisfied. See Cent. W.Va. Energy Co. v.
Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir.
2011). With the exception of certain class actions, the
diversity statute requires complete diversity of parties and
an amount in controversy in excess of $75, 000. See
id.; 28 U.S.C. § 1332(a). Complete diversity of
parties in a case means that the citizenship of every
plaintiff must be different from the citizenship of every
defendant. Cent. W.Va. Energy Co., 636 F.3d at 103.
Here, the plaintiff alleges that he is a resident of South
Carolina (doc. 1 at 1), and that the defendants Aiken County
Government, County Administrator Clay Killian, and County
Council are also residents of South Carolina (id.),
while Nationwide Mutual Insurance Company is a resident of
Iowa. Because the plaintiff and some of the defendants are
South Carolina residents, complete diversity is lacking, and
this court does not have jurisdiction to hear the
plaintiff's state law claim of gross negligence.
Moreover, to the extent the plaintiff attempts to make a
contract claim against Nationwide, the same rationale
precludes jurisdiction in this court.
it is recommended that the District Court dismiss this action
without prejudice and without issuance and service of
process. See Neitzke v. Williams, 490 U.S. 319,
324-25 (1989); Haines v. Kerner, 404 U.S. 519
(1972). The plaintiff's attention is directed to
the important notice on the next page.
of Right to File Objections to Report ...