United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
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
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).
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. §
motion to remand, the plaintiff argues that his causes of
action arise only under state law (doc. 11 at
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),
” 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
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).
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.”).
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).
of Right to File Objections to Report and
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
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
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.