Opinion
C/A 6:23-cv-01880-BHH-JDA
05-08-2023
Latasha Boyd, a/k/a Latasha Monique Boyd, Plaintiff, v. Derrick S. Wilkey, Sr., Defendant.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Latasha Boyd (“Plaintiff”), proceeding pro se and in forma pauperis, files this action against Derrick S. Wilkey, Sr. (“Defendant”). This matter is before the Court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C. Having reviewed the Complaint in accordance with applicable law, the undersigned concludes that this action should be summarily dismissed without issuance and service of process.
Based on the allegations in the Complaint, it appears that Defendant is the father of the parties' minor child. [Doc. 1 at 5-7.]
BACKGROUND
Plaintiff commenced this action by filing a civil rights Complaint pursuant to 42 U.S.C. § 1983 on the standard form. [Doc. 1.] Plaintiff asserts she is seeking $25,000 in damages from Defendant for false accusations, defamation, and intentional infliction of emotional distress. [Id. at 5.] Plaintiff alleges Defendant has caused her to suffer stress from his intentional infliction of emotional distress. [Id. at 6.] She alleges she has become ill from his abuse, causing her to suffer complex PTSD. [Id.] Plaintiff alleges she never wanted to keep Defendant's son away from him and that the son needs a male figure. [Id.] Plaintiff alleges Defendant abuses his son, fails to provide for him, causes her stress, and has driven her to drink. [Id.]
Plaintiff alleges that Defendant was jailed for kidnaping and domestic violence, but “they” reduced it to assault and battery. [Id.] Plaintiff tried to get an order of protection, but “they” would not serve it. [Id.] Plaintiff took a “trespassing” out on Defendant, but he still comes to her apartment. [Id.] Defendant has called child protective services on Plaintiff five times making false allegations. [Id.] Defendant keeps threatening to kill Plaintiff. [Id.] Defendant slanders and defames Plaintiff's character on Facebook. [Id.] When Plaintiff's son sees Defendant, the son tries to commit self-harm and the doctor told Plaintiff to keep her son away from Defendant. [ Id. at 6-7.] Plaintiff contends Defendant has engaged in narcissistic abuse and parental alienation and has used public officials to cause turmoil in her life. [Id. at 7.] For her relief, Plaintiff seeks damages in the amount of $25,000. [Id.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the undersigned is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Further, Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Further, this Court would possess the inherent authority to review a pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the complaint were not subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.”) (citations omitted); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) (“[A] district court's obligation to review its own jurisdiction is a matter that must be raised sua sponte, and it exists independent of the ‘defenses' a party might either make or waive under the Federal Rules.”); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (providing a judge may dismiss an action sua sponte for lack of subject matter jurisdiction without issuing a summons or following other procedural requirements). Accordingly, in addition to the screening requirements of § 1915(e)(2)(B), “[t]he present Complaint is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous.” Trawick v. Med. Univ. of S.C., No. 2:16-cv-730-DCN-MGB, 2016 WL 8650132, at *4 (D.S.C. June 28, 2016) (citation omitted); Mayhew v. Duffy, No. 2:14-cv-24-RMG, 2014 WL 468938, at *1 (D.S.C. Feb. 4, 2014) (exercising inherent authority to summarily dismiss a frivolous case where pro se plaintiff filed new case seeking to vacate a previously-adjudicated case)).
Because Plaintiff is a pro se litigant, her pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, the pro se Complaint is subject to summary dismissal. 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 Plaintiff could prevail, it should do so, but the Court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for her, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
DISCUSSION
The Complaint purportedly is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012) (quoting 42 U.S.C. § 1983). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Here, Plaintiff's Complaint is subject to summary dismissal for the reasons below. No State Action
As noted, to state a § 1983 claim, Plaintiff must allege that she was deprived of a constitutional right by a person acting under the color of state law. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). However, Defendant is a private individual, and Plaintiff has not alleged facts showing that he is a state actor. With few exceptions, purely private conduct, no matter how wrongful, is not actionable under 42 U.S.C. § 1983 or the United States Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1983). The “under-color-of-state-law element of § 1983,” like the Fourteenth Amendment's “state action” requirement, “excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation omitted); see also Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (holding that § 1983's requirement that a defendant act under “color of law” is treated as the equivalent to the Fourteenth Amendment's “state action” requirement). In distinguishing between state action and private action,
the judicial obligation is not only to preserve an area of individual freedom by limiting the reach of federal law and
avoid the imposition of responsibility on a State for conduct it could not control, but also to assure that constitutional standards are invoked when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (cleaned up). State action may be found to exist “if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (internal quotation marks omitted).
The United States Court of Appeals for the Fourth Circuit has identified several contexts in which private action may be found to constitute state action, such as “when the state has coerced a private actor to commit an act that would be unconstitutional if done by the state”; “when the state has delegated a traditionally and exclusively public function to a private actor”; “when the state has sought to evade a clear constitutional duty through delegation to a private actor”; or “when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen.” Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993). The critical inquiry in each case is whether the private actor's conduct was fairly attributable to the state. Mentavlos v. Anderson, 249 F.3d 301, 313 (4th Cir. 2001). “[T]he ultimate resolution of whether an actor was a state actor . . . is a question of law for the court.” Goldstein v. Chestnut Ridge Vol. Fire Co., 218 F.3d 337, 344 n.7 (4th Cir. 2000).
Here, even liberally construed, the Complaint “includes no facts that establish such a ‘close nexus' between [Defendant's] challenged actions and the state” such that his actions “may be ‘fairly treated' as those of the state itself.” Perry v. Chattem, Inc., No. 7:08-cv-00106, 2008 WL 983428, at *4 (W.D. Va. Apr. 9, 2008) (citation omitted); see also Palmore v. Wal-Mart, No. 9:08-cv-2484-GRA-BM, 2009 WL 1457136, at *3 (D.S.C. May 22, 2009) (“In order to be a proper party defendant in a § 1983 action, the defendant must be, or step into the role of, a public actor.”), aff'd, 332 Fed.Appx. 863 (4th Cir. 2009). Because Plaintiff has not alleged facts showing that Defendant is a state actor or that he was a wilful participant in joint action with any state official, Plaintiff's claims against Defendant are not proper in this § 1983 action. Accordingly, Defendant is entitled to dismissal for lack of state action.
No Jurisdiction
Additionally, the Court lacks jurisdiction over Plaintiff's claims. As explained above, Plaintiff's claims cannot be asserted in a civil rights action brought under 42 U.S.C. § 1983. And, Plaintiff has failed to allege facts showing this Court has subject matter jurisdiction over any other claim against Defendant.
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 to determine if a valid basis for its jurisdiction exists “and to dismiss the action if no such ground appears.” Id.; 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.”). There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in her pleadings, McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (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.”). As such, Federal Rule of Civil Procedure 8(a)(1) requires that a complaint provide “a short and plain statement of the grounds for the court's jurisdiction[.]”
Generally, federal district courts have original jurisdiction over two types of cases, referred to as (1) federal question cases, pursuant to 28 U.S.C. § 1331, and (2) diversity cases, pursuant to 28 U.S.C. § 1332. As to cases involving a federal question, § 1331 provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[F]ederal question jurisdiction exists ‘only when a federal question is presented on the face of the plaintiff's properly-pleaded complaint.'” Burbage v. Richburg, 417 F.Supp.2d 746, 749 (D.S.C. 2006) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). Diversity jurisdiction, on the other hand, requires (1) complete diversity of the parties and (2) an amount in controversy in excess of $75,000.00. See 28 U.S.C. § 1332(a). The parties are completely diverse only if no party on one side is 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 (1978).
Here, Plaintiff has failed to allege facts to demonstrate a valid basis for this Court to exercise jurisdiction under either federal question or diversity as to her claims against Defendant.
First, Plaintiff has failed to identify, and the Court is unable to glean from the Complaint, any federal question. Although Plaintiff brought this action under 42 U.S.C. § 1983 to purportedly vindicate her civil rights, her allegations are without merit for the reasons stated above and any claim for relief for a civil rights violation fails to provide a basis for federal question jurisdiction. Specifically, Plaintiff has failed to allege facts demonstrating any state action as to Defendant. Plaintiff's claims premised on any civil rights constitutional violations are therefore frivolous, without merit, and subject to dismissal. Further, Plaintiff has failed to cite to any other federal statute, treaty, or constitutional provision that is at issue in this case or that would provide any avenue of relief. Thus, there is no basis for this Court to find jurisdiction premised on a federal question.
Next, Plaintiff has also failed to satisfy the requirements of the diversity statute to the extent she intends to assert any cause of action arising under state law. As noted, complete diversity of the parties 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., 437 U.S. at 372-74. Here, Plaintiff alleges that she and Defendant are both citizens of South Carolina. [Doc. 1 at 4.] Accordingly, complete diversity between the parties does not exist, and the Court lacks diversity jurisdiction over this action. See Navy Fed. Credit Union v. LTD Fin. Servs., LP, 972 F.3d 344, 352 (4th Cir. 2020) (explaining that “no plaintiff may share a citizenship with any defendant”).
In light of the foregoing, the undersigned concludes that this Court lacks jurisdiction over Plaintiff's claims against Defendant under either federal question or diversity, and the Complaint is therefore subject to summary dismissal. Further, to the extent Plaintiff has stated a cognizable claim for relief under state law, this Court should decline to exercise supplemental jurisdiction over those state law claims as the undersigned has recommended that Plaintiff's federal law claims under § 1983 be dismissed.
The Court's conclusion that it lacks jurisdiction over Plaintiff's claims does not mean that she is without a remedy. For example, Plaintiff may be able to bring her state law claims in the appropriate state court having jurisdiction.
In light of all the foregoing, this case should be dismissed as frivolous under § 1915(e)(2)(B)(i) and for failure to state a claim under which relief may be granted pursuant to § 1915(e)(2)(B)(ii). See Thomas v. Berry, No. 8:10-cv-698-MBS-BHH, 2010 WL 4008333, at *2 (D.S.C. Apr. 27, 2010), Report and Recommendation adopted by 2010 WL 4007189 (D.S.C. Oct. 13, 2010); Shuler v. Neely, No. 3:11-cv-182-RJC, 2011 WL 9879176, at *2 (W.D. N.C. Apr. 19, 2011).
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss this action pursuant to § 1915(e)(2)(B) without issuance and service of process.
See Michau v. Charleston Cnty., 434 F.3d 725, 728 (4th Cir. 2006) (affirming the district court's dismissal of two complaints pursuant to § 1915(e)(2)(B), even though the plaintiff was not a prisoner, because the plaintiff was proceeding in forma pauperis).
The undersigned finds that, in light of all of the foregoing, Plaintiff cannot cure the deficiencies in her Complaint and that allowing Plaintiff to amend her pleadings therefore would be futile. Accordingly, the undersigned recommends that the District Court decline to give Plaintiff an opportunity to amend.
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).