United States District Court, D. South Carolina
Beverley D. Wilson, Plaintiff,
City of Orangeburg, Michael Butler, Liz Keitt-Zimmerman, John Yow, Orangeburg Department of Public Works, Dean Felkel, Russell Strosnider, Mike Adams, Stillinger Body Shop, Inc., Mack Stillinger, Jr., and City of Orangeburg County Council, Defendants.
ORDER AND NOTICE
V. Hodges United States Magistrate Judge
D. Wilson (“Plaintiff”), proceeding pro se,
brings this action against City of Orangeburg
(“City”); Michael Butler, mayor of Orangeburg
(“Mayor”); Liz Keitt-Zimmerman, mayor pro tempore
of Orangeburg (“Mayor Pro Tempore”); John Yow,
individually and as city administrator of Orangeburg
(“City Administrator”); Orangeburg Department of
Public Works (“Public Works Department”); Dean
Felkel, as director of the Department of Public Works
(“Public Works Director”); Russell Strosnider,
individually and as assistant director of the Department of
Public Works (“Public Works Assistant Director”);
Mike Adams, individually and as chief of the Orangeburg
Department of Public Safety (“Public Safety
Chief”); Stillinger Body Shop, Inc. (“Body
Shop”); Mack Stillinger, Jr., president of Body Shop
(“Body Shop President”); and City of Orangeburg
County Council (“County Council”) (collectively
“Defendants”). Plaintiff alleges civil rights
violations and state tort causes of action. 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.
alleges Public Works Assistant Director wrongfully authorized
Body Shop to tow her 2004 PT Cruiser from her back yard on
July 19, 2016. [ECF No. 1 at 4]. She asserts neither Body
Shop nor Public Works Assistant Director will authorize the
return of her car, despite her repeated requests.
Id. at 6-8. Plaintiff admits Public Works Assistant
Director sent her a letter approximately four months prior
informing her a city ordinance precluded her from keeping the
inoperable and unlicensed car on her property and warning her
of potential consequences for failing to take corrective
action. Id. at 8-9. These consequences included a
ticket, a fine, a summons to appear before a magistrate
judge, or the City “do[ing] what is necessary to
correct the property.” Id. at 9. She states
she petitioned Public Works Department for a financial
hardship waiver, but Public Works Department denied her
petition. Id. at 9-10. Plaintiff contends the car
was not inoperable, but admits it was uninsured and
unlicensed. Id. at 10-11.
describers herself as “of mixed ancestry” and
states her immediate neighbors are Caucasian. Id. at
14-15. Plaintiff describes City's history of racial and
socio-economic discrimination and asserts other City
residents have not had their inoperable or unlicensed cars
towed despite not having a waiver. Id. at 15-16.
asserts violations of her constitutional rights to due
process and equal protection, violations of the South
Carolina Unfair Trade Practices Act, and causes of action for
breach of fiduciary duty, abuse of power, intentional and
negligent infliction of emotional distress, and replevin.
Id. at 17-27. Plaintiff seeks monetary damages and
the return of her car, with appropriate restorative repair.
Id. at 27-28.
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); 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 ...