United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, UNITED STATES MAGISTRATE JUDGE
Jerome McMillan (“Plaintiff”), proceeding pro se
and in forma pauperis, filed this action against Ratner
Companies and Dennis Ratner (collectively,
“Defendants”), alleging breach of contract.
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. For the
following reasons, the undersigned recommends the district
judge dismiss this action without issuance and service of
Factual and Procedural Background
filed his complaint on June 13, 2019. [ECF No. 1]. On June
17, 2019, the court issued an order notifying Plaintiff of
certain pleading deficiencies and granting him an opportunity
to cure those deficiencies through an amended complaint. [ECF
No. 9]. Plaintiff filed an amended complaint on July 1, 2019.
[ECF No. 11].
alleges Defendants are the parent company and owner of his
former employer, Hair Cuttery. [ECF No. 1 at 1-2]. In 2004,
Plaintiff brought an employment action against Defendants,
alleging sex discrimination and constructive discharge during
his employment from 2003 to 2004. See McMillan v. Ratner
Companies, C/A No. 3:04-22787 (D.S.C. Oct. 27,
2004).Plaintiff asserts he and Defendants settled
that case. [ECF No. 11-1 at 1].
alleges his wife filed for divorce in 2011. Id. at
2. He asserts, in 2013, one of his wife's friends, who
was a manager at Hair Cuttery, told his wife he had
misrepresented information in his suit against Defendants.
Id. Plaintiff contends his wife then used this
information in their divorce proceedings and the divorce
proceedings did not go well. Id. at 2-3.
remainder of Plaintiff's amended complaint provides
background on his prior employment dispute with Defendants,
allegations against local attorneys, and information
regarding his divorce, custody arrangements, and his
relationship with an ex-girlfriend. Id. Plaintiff
alleges causes of action for breach of contract under 41
U.S.C. § 6503 and conspiracy to commit offense or
defraud under 18 U.S.C. § 371. [ECF No. 11 at 3]. He
seeks $10, 000, 000.00. Id. at 4.
Standard of Review
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); seealso 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 ...