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Moorer v. Luthi

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

January 15, 2019

Curtis Glenn Moorer, Plaintiff,
Perry Luthi and New Carolina Mortgage, Defendants.


          Kevin F. McDonald United States Magistrate Judge

         The plaintiff, proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends summary dismissal of this case.


         The plaintiff contends that for the past 15 years defendant New Carolina Mortgage - owned by the defendant Perry Luthi - has harassed and caused him stress by tapping his phone, blackballing him, and attempting to murder the plaintiff by releasing mold and sewer gas into his home (doc. 1 at 5). The plaintiff also alleges that New Carolina Mortgage has attempted to damage his property (doc. 1 at 5). He alleges that this Court has jurisdiction because “all of [his] jobs are federal jobs” (doc. 1 at 3). For his relief, the plaintiff seeks money damages for his home damage, the mold infestation, and the sewer gas released into his home (doc. 1 at 5).


         The plaintiff is a pro se litigant and his 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 (2007) (per curiam). The requirement of liberal construction, however, 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, 391 (4th Cir. 1990).

         Generally, a case can be originally filed in federal district court if there is “federal question” jurisdiction under 28 U.S.C. § 1331 or “diversity of citizenship” under 28 U.S.C. § 1332. Federal courts are courts 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). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). 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.” Bulldog Trucking, 147 F.3d at 352; 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.”). “[T]he facts providing the court jurisdiction must be affirmatively alleged in the complaint.” Pinkley, 191 F.3d at 399 (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178 (1936)). 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 courts 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, 191 F.3d at 399 (citing 2 Moore's Federal Practice § 8.03[3] (3d ed. 1997)). If the court, viewing the allegations in the light most favorable to the plaintiff, finds insufficient allegations in the pleadings, the court will lack subject matter jurisdiction.

         This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).


         The plaintiff's claims against the defendants are subject to dismissal because the Court lacks subject matter jurisdiction. In order for this Court to hear and decide a case, the Court must first have jurisdiction over the subject matter of the litigation. It is well-settled that federal courts are courts of limited jurisdiction. The two most commonly recognized and utilized bases for federal court jurisdiction are (1) “federal question, ” and (2) “diversity of citizenship.” 28 U.S.C. §§ 1331, 1332. The allegations contained in the complaint filed by the plaintiff in this case do not fall within the scope of either form of this Court's limited jurisdiction.

         First, there is clearly no basis for a finding of diversity jurisdiction over this complaint. The diversity statute, 28 U.S.C. § 1332(a), requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75, 000.00). 28 U.S.C. § 1332. Complete diversity of parties in a case means that no party on one side may be a citizen of the same state as any party on the other side. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978). This Court has no diversity jurisdiction over this case, as the plaintiff alleges that he and both defendants are residents of South Carolina.

         Second, the allegations contained in the complaint are insufficient to show that the case is one “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. That is, the complaint does not state a claim cognizable under this Court's “federal question” jurisdiction. Liberally construed, the plaintiff's complaint involves what may generally be termed a property damage dispute. Thus, in absence of diversity jurisdiction, to the extent that the plaintiff's complaint could be liberally construed as stating a property damage claim against fellow South Carolina residents, it fails to state a viable claim within this Court's federal question jurisdiction. Additionally, the plaintiff's allegations make no specific reference to a violation of any federal statute or constitutional provision by the defendants, nor is any type of federal question jurisdiction otherwise evident from the face of the complaint. Absence of such allegations supports a holding that this Court lacks subject matter jurisdiction.

         In the absence of either diversity or federal question jurisdiction, this case should be summarily dismissed.

         RECO ...

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