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Alexander v. Stirling

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

March 13, 2019

John Douglas Alexander, Plaintiff,
v.
Bryan Stirling, B. McGee, Charles Williams, Kurt Stevens, M. Barker, and the South Carolina Department of Corrections, Defendants.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         This matter is before the court on the motion to remand filed by the plaintiff, a state prisoner proceeding pro se. 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.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42, United States Code, Section 1983 and submit findings and recommendations to the District Court.

         On January 24, 2019, this case was removed by the defendants to this court from the McCormick County Court of Common Pleas based on federal question jurisdiction under 28 U.S.C. § 1331 (doc. 1). On February 20, 2019, the plaintiff filed a motion to remand (doc. 11), and on March 6, 2019, the defendants filed their response in opposition to the motion to remand (doc. 19). The plaintiff filed a reply on March 11, 2019 (doc. 23).

         Federal district courts have original jurisdiction over claims arising under federal law, including “all civil actions arising under the Constitution.” 28 U.S.C. § 1331. “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). State court defendants may remove a civil action to federal district court if the district court has original subject matter jurisdiction over the action. 28 U.S.C. § 1441(a).

         In the motion to remand, the plaintiff argues that his causes of action arise only under state law (doc. 11 at 2).[1] The general rule is that a plaintiff is the “master of the claim, ” and he may “avoid federal jurisdiction by exclusive reliance on state law” in drafting his complaint. Caterpillar, 482 U.S. at 392. Here, however, in addition to alleging violation of “Statute Section 15 Tort, SC Code Ann. (1976), ”[2] the plaintiff alleges in his complaint that the defendants acted with “deliberate indifference” and subjected him to “cruel and unusual punishment” in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution (doc. 1-1 at 40). Accordingly, a federal question is presented, and removal by the defendants was proper.

         In the reply in support of his motion, the plaintiff argues that his claims are cognizable under the South Carolina Tort Claims Act (“SCTCA”) and that defendant South Carolina Depart of Corrections (“SCDC”) is amenable to suit in state court under the SCTCA (doc. 23 at 2). In support of his position, the plaintiff cites Green v. S.C. Dep't of Corr., in which the court noted that the SCDC is “amenable to suit in state court for tort pursuant to the [SCTCA], but is not amenable to suit in federal court for damages based on an alleged violation of a prisoner's constitutional rights.” C.A. No. 9:11-3407-DNC, 2012 WL 360144, at *1 n. 1 (D.S.C. Jan. 13, 2012), R&R adopted by 2012 WL 360105 (D.S.C. Feb. 2, 2012) (citation omitted).

         “[I]t is permissible for a plaintiff to dismiss his federal claims or amend the complaint to remove federal claims and seek remand.” Perry v. S.C. Dep't of Corr, C.A. No. 1:16-824-BHH-SVH, 2016 WL 4118923, at *2 (D.S.C. May 13, 2016), R&R adopted by 2016 WL 4060942 (D.S.C. July 29, 2016) (citing 16 Moore's Federal Practice § 107.14(3)(b)(ii) (3rd ed. 2013)). Pursuant to 28 U.S.C. § 1367(c)(3), the district court may decline to exercise supplemental jurisdiction “if the district court has dismissed all claims over which it has original jurisdiction.” See also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”).

         Based upon the foregoing, the undersigned recommends that the district court interpret the plaintiff's filings as voluntarily dismissing any federal claims alleged in his complaint. The undersigned further recommends that the district court decline to exercise supplemental jurisdiction over the plaintiff's state law claims and grant the plaintiff's motion to remand (doc. 11) this matter to the McCormick County Court of Common Pleas. Should this recommendation be adopted, the undersigned recommends that the pending non-dispositive motions be denied as moot (see docs. 12, 13, 14, 24, 27, 29).

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 300 East Washington Street Greenville, South Carolina 29601

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,76 ...


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