United States District Court, D. South Carolina
ORDER AND NOTICE
V. Hodges, United States Magistrate Judge
Colbert (“Plaintiff”), proceeding pro se and in
form pauperis, filed this complaint against South Carolina
Department of Family Services (“Defendant”).
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 she has been trying for a year to regain custody of
her three children and has completed the required programs,
but the court “keep putting [her] off.” [ECF No.
1 at 5]. She asserts Defendant is not treating her fairly
because of her disabilities. Id. at 4. She requests
the court look into the matter and help her get her children
back. Id. at 6.
Standard of Review
filed her 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 her 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 that 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 this
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 that 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's complaint fails to
demonstrate complete diversity of citizenship or to allege an
amount in controversy that satisfies the requirement of
§ 1332(a). Accordingly, the court has no diversity
jurisdiction over this case.
the essential allegations contained in Plaintiff's
complaint are insufficient to show that the case is one
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. Plaintiff
does not plead a specific violation of a federal statute or
constitutional provision by Defendant, nor is any type of
federal question jurisdiction otherwise evident from the face
of the pleading. Plaintiff alleges the court has federal
question jurisdiction because she does not “feel [she
is] being treated fairly by [Defendant] because of [her]