Garcia v. Richland County Sheriff's Department

          ORDER AND NOTICE

          Shiva V. Hodges United States Magistrate Judge

         Jerome Scott Garcia (“Plaintiff”), proceeding pro se and in forma pauperis, filed this complaint against Richland County Sheriff's Department (“RCSD”), RCSD deputies Danny Brown and Addy Perez (“Deputies”), Live PD Host Tom Morris, Jr. (“Host”), and Live PD's producer, Big Fish Entertainment (“Producer”) (collectively “Defendants”), alleging violations of his civil rights and libel. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. I. Factual and Procedural Background Plaintiff alleges he was sitting in his car in a Walmart parking lot on December 16, 2017, around 8:00 p.m., when an unmarked truck with police lights parked near him. [ECF No. 1 at 8]. He asserts he exited his car and asked the officer if he could help him with anything. Id. He asserts the officer asked him if he was okay. Id. Plaintiff states he told the officer he was fine and the officer indicated he smelled marijuana. Id. He asserts he then noticed two cameras filming him. Id. Plaintiff states the officer arrested him, searched his vehicle, seized his property, and issued him a ticket. Id. He asserts the officers targeted him because of his California license plate. Id.

         Plaintiff further alleges Host committed slander by referring to Plaintiff as a sovereign citizen and stating he made up his own laws. Id. He asserts he has been unable to gain employment since the show aired and has been falsely arrested three times by officers claiming he is a sovereign citizen. Id. He contends the arrests have impacted his credit. Id. at 7.

         Plaintiff asserts violations of 25 C.F.R. § 11.404; 18 U.S.C. §§ 241, 242, and 245; the Privacy Act of 1974, 5 U.S.C. § 552(a) (“Privacy Act”); and his Fourteenth Amendment due process and equal protection rights. Id. at 4. He seeks monetary damages. II. Discussion A. Standard of Review Plaintiff filed his complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 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). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).

         Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         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). 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.” Id. 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.”). 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 Cir. 1999).

         There is no presumption that a federal court has jurisdiction over 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, 189-90 (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.”). To this end, Fed.R.Civ.P. 8(a)(1) requires 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[, ] a federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded.” Pinkley, 191 F.3d at 399 (citations 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.

         The two most commonly recognized and utilized bases for federal court jurisdiction are (1) diversity of citizenship pursuant to 28 U.S.C. § 1332, and (2) federal question pursuant to 28 U.S.C. § 1331. The allegations contained in the instant complaint do not fall within the scope of either form of the court's limited jurisdiction.

         1. Diversity

         First, the diversity statute, 28 U.S.C. § 1332(a), requires complete diversity of parties and an amount in controversy in excess of $75, 000. Complete diversity of parties in a case means no party on one side may be a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74 nn.13-16 (1978). Plaintiff admits he and at least three of the defendants reside in South Carolina. [ECF No. 1 at 2-3, 6]. Thus, the court lacks diversity jurisdiction.

         2. Federal Question

         Second, the essential allegations contained in Plaintiff's complaint are insufficient to show the case is one “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. a. Criminal Statutes The federal statutes Plaintiff cites are criminal statutes and do not provide private rights of action. See Ogletree v. Vigil, C/A No. 17-3724, 2018 WL 582391, at *2 (E.D. La. Jan. 29, 2018) (finding 25 C.F.R. § 11.404 establishes a misdemeanor criminal offense in the context of “Indian affairs” and does not provide a civil remedy); Casey v. Orman, C/A No. 5:08-1373, 2009 WL 2971770, at *5 (S.D.W.Va. Sept. 10, 2009) (holding 18 U.S.C. § 242 does not provide for a private cause of action and collecting cases); Lee v. Lewis, C/A No. 2:10-55-F, 2010 WL 5125324, at *1 (E.D. N.C. Dec. 8, 2010) (finding 18 U.S.C. § 245 does not provide for any civil cause of action).

         To the extent Plaintiff is attempting to have Defendants criminally prosecuted, he does not have a constitutional right to, or a judicially-cognizable interest in, the criminal prosecution of another person. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005) (“[T]he benefit that a third party may receive from having someone else arrested for a crime ...