United States District Court, D. South Carolina
ORDER AND NOTICE
V. Hodges United States Magistrate Judge
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
“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.
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.
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).
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.
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
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.
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.
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.
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
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 ...