United States District Court, D. South Carolina
REPORT OF MAGISTRATE JUDGE
F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
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.
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
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. 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. On January 8, 2018, Plaintiff filed the
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.
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).
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
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
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).
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).
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.
from suit: Judge Stilwell, Judge Verdin, and Judge
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.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, ...