United States District Court, D. South Carolina, Rock Hill Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION,
DISMISSING THE COMPLAINT WITHOUT PREJUDICE AND WITHOUT
ISSUANCE AND SERVICE OF PROCESS, AND RENDERING AS MOOT
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE
action involves a tax dispute between Plaintiff Jerry Lee
Ross (Ross) and Defendant North Carolina Department of
Revenue (NCDR). Ross claims the Court has federal question
jurisdiction over the matter pursuant 28 U.S.C. § 1331.
He is proceeding pro se.
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting (1) Ross's complaint be dismissed without
prejudice and without issuance and service of process and (2)
his motion in limine and motion for a preliminary injunction
be rendered moot. The Report was made in accordance with 28
U.S.C. § 636 and Local Civil Rule 73.02 for the District
of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on September 13, 2018, and
the Clerk of Court filed Ross's objections on September
27, 2018. The Court has reviewed the objections, but holds
them to be without merit. It will therefore enter judgment
makes seven objections to the Report. First, he objects to
the Magistrate Judge's statement his “complaint
fails to establish any viable ground for federal subject
matter jurisdiction under 28 U.S.C. § 1331.”
Report 5. Ross appears to contend his claim of a
“[v]iolation of right to earn a fair wage”
amounts to a colorable claim under the Court's §
1331 jurisdiction. It does not. Therefore, the Court will
overrule this objection.
Ross objects to the Magistrate Judge's conclusion
“[t]he allegations of [his] complaint do not reference
a violation of any federal statute or constitutional
provision by (NCDR], nor is any type of federal question
jurisdiction otherwise evident from the face of the
complaint.” Report 5. According to Ross, however,
“there are several federal question jurisdictions
evident from the face of the complaint. . . . [including, ]
[v]iolation of right to earn a fair wage, paper terrorism (18
U.S. CODE CHAPTER 113B § 2332d-Financial transactions)
and violation of due process.” Objections 2.
Ross's fair wage claim, as noted above, there is no
viable federal cause of action for a “violation of
right to earn a fair wage” here. Regarding his paper
terrorism claim, that term generally refers to the harassment
by sovereign citizens of courts and government agencies with
numerous frivolous and sometime fraudulent filings.
Gravatt v. United States, 100 Fed.Cl. 279, 283 n.2
(2011). And, the statute Ross lists in reference to paper
terrorism is inapplicable. See 18 U.S.C. §
2332d (“Except as provided in regulations issued by the
Secretary of the Treasury, in consultation with the Secretary
of State, whoever, being a United States person, knowing or
having reasonable cause to know that a country is designated
under section 6(j) of the Export Administration Act of 1979 .
. . as a country supporting international terrorism, engages
in a financial transaction with the government of that
country, shall be fined under this title, imprisoned for not
more than 10 years, or both.”).
mere listing of federal statutes and the constitution is
insufficient to trigger the Court's federal question
jurisdiction. Accordingly, “[a] claim invoking
federal-question jurisdiction under 28 U.S.C. § 1331 . .
. may be dismissed for want of subject-matter jurisdiction if
it is not colorable, i.e., if it is immaterial and made
solely for the purpose of obtaining jurisdiction or is wholly
insubstantial and frivolous.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 513 (2006).
Ross's due process claim, “the Tax Injunction Act
[TIA], 28 U.S.C. § 1341, precludes this [C]ourt from
exercising jurisdiction over [his] [due process] claim[
].” Report 6. For all these reasons, the Court will
overrule this objection, too.
Ross contends the Magistrate Judge erred by failing to
conclude his claims of “Privacy breach and
confidentiality” and “Invasion of Privacy”
provide the basis for the Court's federal question
jurisdiction. But, these are state claims, not federal
questions. Hence, the Court will overrule this objection as
Ross maintains the Magistrate Judge failed to mention any of
his federal causes of action when she stated his
“complaint references state law causes of action,
including slander, negligence, fraud and other intentional
tort claims.” Report 5. The Court has already addressed
the federal claims Ross listed at the beginning of Ross's
complaint and need not do so again here. Suffice it to say
the Court will also overrule this objection.
Ross takes issue with the Magistrate Judge's suggestion
“the [TIA], 28 U.S.C. § 1341, preludes this
[C]ourt from exercising jurisdiction over [his]
claims.” Report 6. According to Ross, “[j]ust one
day in court will determine if there was a violation of
confidentiality and privacy breach, violation of right to
earn a fair wage, violation of due process (which are civil
rights violations) or other allegations mentioned has taken
place.” Objections 5.
summarize, Ross's claims of a violation of
confidentiality and privacy breach are state law claims, his
violation-of-right-to-earn-a-fair-wage claim is not viable,
and his due process claim is foreclosed by ...