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Zulveta v. Gallivan, White, & Boyd, P.A.

United States District Court, D. South Carolina

April 12, 2018

Armando Despaigne Zulveta, Plaintiff,
Gallivan, White, & Boyd, P.A., Charter Communication, LLC, Greenville Library System, Letitia H. Verdin, D. Garrison Hill, Allan Hill, Chace Campbell, Robin B. Stilwell, Desiree R. Allen, Hollie M. Jenkins, Stephen Lopez, Shawn Knox, Defendants.



         The plaintiff, Armando Despaigne Zulveta (“Plaintiff”), proceeding pro se, has filed this action against the above-captioned defendants seeking relief pursuant to 42 U.S.C. § 1983. 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.), this case was referred to the undersigned United States Magistrate Judge for consideration. After careful review, the undersigned recommends that the complaint be dismissed without prejudice, and without issuance and service of process, for the reasons set forth below.


         In 2015, Plaintiff, proceeding pro se, filed a state court action in the Greenville County Court of Common Pleas styled Zulveta v. Charter Communications, LLC, 2015-CP-23-05171 (the “State Court Case”) following a dispute with that defendant (doc. 1 at 3). Gallivan White & Boyd, P.A., a defendant in the instant case (the “Law Firm”), represented Charter Communications, LLC in the State Court Case (doc. 1 at 3-4). State court judges Robin B. Stilwell (“Judge Stilwell”), Letitia H. Verdin (“Judge Verdin”), and D. Garrison Hill (“Judge Hill”), all of whom are defendants in the instant case, adjudicated claims in the State Court Case (doc. 1 at 4-6). Judge Stilwell dismissed Plaintiff's State Court Case on November 7, 2016, after Plaintiff failed to respond to discovery propounded by Charter Communications, LLC (doc. 1 at 4).

         Also in 2015, Plaintiff filed an action in this court styled Zulveta v. State Auto. Mut. Ins. Co., et al., 6:15-2880-HMH-KFM (“Zulveta I”), asserting claims against his former employer, as well as the attorneys, law firms, insurance representatives, and a doctor who were involved in his claim pending before the South Carolina Workers' Compensation Commission.[1] The District Court summarily dismissed Plaintiff's complaint in Zulveta I by order dated March 13, 2017. Plaintiff appealed, and the Fourth Circuit dismissed the appeal on August 14, 2017.[2] On January 8, 2018, Plaintiff filed the instant action.


         Plaintiff, who is neither a state nor a federal prisoner, filed this action in forma pauperis pursuant to 28 U.S.C. § 1915. 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). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim based on a meritless legal theory may be dismissed sua sponte “at any time” under 28 U.S.C. § 1915(e)(2)(B). Neitzke, 490 U.S. at 325. The statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits[.]” Id. at 327.

         As a pro se litigant, 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 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 the 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).

         Although the court must liberally construe the pro se complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the complaint, the complaint nonetheless “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also see also McCleary-Evans v. Maryland Dep't of Transp., 780 F.3d 582, 585-87 (4th Cir. 2015) (noting that a plaintiff must plead enough to raise a right to relief above the speculative level); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed in the litigation process only when his complaint is justified by both law and fact). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).


         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, . . . which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998); see also 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.”). Although the absence of subject matter jurisdiction may be raised at any time during the case, determining jurisdiction at the outset of the litigation is the most efficient procedure. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).

         There is no presumption that federal jurisdiction exists in a case. Pinkley, Inc. v. City of Frederick, Md., 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). Accordingly, 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[.]” When a complaint fails to include “an affirmative pleading of a jurisdictional basis, the federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded.” Pinkley, 191 F.3d at 399 (citation omitted). However, if the court, viewing the allegations in the light most favorable to a plaintiff, finds insufficient allegations in the pleadings, the court will lack subject matter jurisdiction. Id.; see also Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012) (when the alleged federal claim is “‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy, '” then subject matter jurisdiction does not exist) (citation omitted).

         The two most commonly recognized and utilized bases for federal court jurisdiction are (1) “federal question” under 28 U.S.C. § 1331, and (2) “diversity of citizenship” pursuant to 28 U.S.C. § 1332. Plaintiff asserts federal question jurisdiction in this action (see doc. 2).


         Plaintiff's complaint alleges conspiracy, fraud, wire fraud, and obstruction of justice against the twelve above-captioned defendants (doc. 1 at 1-2). As a threshold matter, five of the defendants-Judge Stilwell, Judge Verdin, Judge Hill, Stephen Lopez, and Shawn Knox-are immune from suit, and therefore should be summarily dismissed from this action.

         Immunity from suit: Judge Stilwell, Judge Verdin, and Judge Hill

         Plaintiff's complaint alleges claims of conspiracy and fraud against Judge Stilwell, Judge Verdin, and Judge Hill, based upon their rulings in the State Court Case (see doc. 1 at 3-7). As this court's review of the complaint makes clear, all of Plaintiff's claims against Judge Stilwell, Judge Verdin, and Judge Hill are based upon the judges' performance of their judicial duties with respect to the State Court Case. Therefore, Judge Stilwell, Judge Verdin, and Judge Hill have absolute immunity from a claim for damages arising out of their judicial acts unless they acted in the complete absence of all jurisdiction.[3]See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 351-364 (1978); see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (“It has long been settled that a judge is absolutely immune from a claim for damages arising out of his [or her] judicial actions.”) (citations omitted). Whether an act is judicial or nonjudicial relates to the nature of the act, such as whether it is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. Mireles, 502 U.S. at 12. Immunity applies even when the judge's acts were in error, malicious, or in excess of his authority. Id. at 12-13; see also Pierson v. Ray, 386 U.S. 547, ...

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