Opinion
4:19-CV-46-FL
06-14-2019
CHRISTOPHER DOLIN, Plaintiff, v. JORDAN KINDRED, KAREN CRAIG, JEFFERY NEWTON, and WALTER MINTON Defendants.
ORDER and MEMORANDUM AND RECOMMENDATION
This pro se case is before the court on the application to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) (D.E. 1) by plaintiff Christopher Dolin ("plaintiff") and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), respectively. See D.E. dated 4 Apr. 2019. Plaintiff also filed a motion for partial summary judgment, which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). See D.E. dated 11 June 2019.
ORDER ON MOTION TO PROCEED IN FORMA PAUPERIS
The court finds that plaintiff has adequately demonstrated his inability to prepay the required court costs. It is therefore ORDERED that plaintiff's motion to proceed in forma pauperis is ALLOWED.
Although plaintiff lists his spouse's monthly income of $3,200.00 in his proposed complaint (D.E. 1-1), he indicates in his proposed complaint that he and his spouse maintain separate households. Compl. §§ II.B.3, III., IV. Consistent with that allegation, the IFP application (D.E. 1) shows receipt by his spouse of $800.00 in child support, ¶ 1, and payment by him of $800.00 in "alimony, maintenance, and support paid to others," ¶ 8. Accordingly, the court has not considered plaintiff's spouse's income in assessing plaintiff's ability to prepay the required court costs.
MEMORANDUM AND RECOMMENDATION
I. FRIVOLITY REVIEW
Having found that plaintiff is financially eligible to proceed in forma pauperis, the court must now undertake a frivolity review of this case, pursuant to 28 U.S.C. § 1915(e)(2)(B). See Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness). Based on this review and for the reasons stated below, it will be ordered that this litigation proceed against one defendant.
A. Background
Plaintiff commenced this action arising under the court's diversity jurisdiction on 4 April 2019. Compl. (D.E. 1-1), Civ. Cover Sheet (D.E. 1-2). His proposed complaint appears to assert claims pursuant to North Carolina state law, although he does not specify his claims by name. See generally Compl.
Read liberally, as it must be, see Denton, 504 U.S. at 32; White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989), the proposed complaint alleges as follows: Plaintiff's spouse was employed at Riverside Regional Jail Authority ("Riverside"). Id. § III. Defendant Jordan Kindred ("Kindred") was an officer at Riverside who sexually harassed plaintiff's spouse and pursued a dating and sexual relationship with her. Id. §§ I.B., III. On or about 28 April 2018, Kindred's actions towards plaintiff's spouse resulted in plaintiff leaving the marital residence. Id. §§ II.B.3, III. On 1 September 2018, plaintiff's spouse ended the relationship with Kindred, but Kindred continued to sexually harass her, which included touching, verbal comments, and stalking. Id.§ III. Defendants Karen Craig ("Craig"), Jeffery Newton ("Newton"), and Walter Minton ("Minton") allowed and openly accepted the sexual harassment by Kindred to be present in the workplace. Id.§ III.B.3. Plaintiff, a citizen of North Carolina, alleges that all defendants are citizens of the state of Virginia. Id. §§ II.B.1, B.2.
Plaintiff seeks damages for emotional distress, expenses incurred in maintaining separate households, and costs. Id. §§ III.B.3, IV.
B. Applicable Legal Standards
1. Frivolity review
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must dismiss the complaint if it determines that the action is frivolous or malicious, 28 U.S.C. § 1915(e)(2)(B)(i); fails to state a claim upon which relief can be granted, id. § 1915(e)(2)(B)(ii); or seeks monetary relief from an immune defendant, id. § 1915(e)(2)(B)(ii). See Denton, 504 U.S. at 27 (standard for frivolity).
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the complaint must "'state[ ] a plausible claim for relief' that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to "less stringent standards" than those drafted by attorneys. White, 886 F.2d at 722-23. Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that "[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). "Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress." Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) ("The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction."). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If in a frivolity review the court determines that it lacks subject matter jurisdiction, it must dismiss the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). More generally, "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Another basis is diversity of citizenship or so-called diversity jurisdiction, which requires that the citizenship of each plaintiff be different from that of each defendant, and the amount in controversy exceeds $75,000. Id. § 1332; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978); Turner v. Cooper, No. 2:13-CV-02017-JMC, 2013 WL 5587856, at *3 (D.S.C. 16 Aug. 2013) ("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."), rep. & recomm. adopted, 2013 WL 5587856, at *1 (10 Oct. 2013). For purposes of diversity jurisdiction, an individual is deemed to be a citizen of the state in which he is domiciled. Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998) ("As the Supreme Court has consistently held, however, state citizenship for purposes of diversity jurisdiction depends not on residence, but on national citizenship and domicile, . . . and the existence of such citizenship cannot be inferred from allegations of mere residence, standing alone."); Comm'r v. Nubar, 185 F.2d 584, 587 (4th Cir. 1950) ("'Residence' means living in a particular locality, but 'domicile' means living in that locality with intent to make it a fixed and permanent home." (internal quotation marks omitted)). When diversity jurisdiction exists, a plaintiff may assert only claims that arise wholly under state law. There are also statutes conferring jurisdiction for particular types of cases.
2. Alienation of Affection and Criminal Conversation under North Carolina Law
Under North Carolina law, a claim for alienation of affection is established when a plaintiff shows:
(1) that [she and her husband] were happily married, and that a genuine love and affection existed between them; (2) that the love and affection so existing was alienated and destroyed; [and] (3) that the wrongful and malicious acts of the defendant[ ] produced and brought about the loss and alienation of such love and affection.Ammarell v. France, No. 316-CV-708-RJC-DSC, 2018 WL 2843441, at *2 (W.D.N.C. 11 June 2018) (quoting McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620, 623 (2006)); Bowden v. Agnew, No. 1:12CV1237, 2013 WL 3545507, at *5 (M.D.N.C. 11 July 2013) ("To state a claim for alienation of affection, one must allege: '(1) a marriage with genuine love and affection; (2) the alienation and destruction of the marriage's love and affection; and (3) a showing that defendant's wrongful and malicious acts brought about the alienation of such love and affection.'" (quoting Heller v. Somdahl, 206 N.C.App. 313, 315, 696 S.E.2d 857, 860 (2010))).
The first element is satisfied with a showing that the marriage was happy and the husband and wife had genuine love and affection between them. Heller v. Somdahl, 206 N.C. App. 313, 315, 696 S.E.2d 857, 860 (2010). The second element requires a showing that some interference resulted in the marriage's love and affection being alienated and destroyed. Id. Finally, the third element requires that plaintiff show that it was the defendant's acts that caused the spouse's alienation. Id. ("'There must be active participation, initiative or encouragement on the part of the defendant in causing one spouse's loss of the other spouse's affections for liability to arise.'" (quoting Peake v. Shirley, 109 N.C. App. 591, 594, 427 S.E.2d 885, 887 (1993))).
A claim for criminal conversation under North Carolina law is stated when it is established '"the plaintiff was lawfully married . . . and that during the existence of such marriage . . . the defendant [ ] had sexual intercourse with [the] plaintiff's [spouse] . . . ." Vonfeldt v. Grapsy, No. 1:16CV1179, 2017 WL 590337, at *2 (M.D.N.C. 14 Feb. 2017) (quoting Bryant v. Carrier, 214 N.C. 191, 194-95, 198 S.E. 619, 621 (1938)), rep. & recomm. adopted, 2017 WL 1187841 (30 Mar. 2017); Bowden v. Agnew, No. 1:12CV1237, 2013 WL 3545507, at *5 (M.D.N.C. 11 July 2013) ("A claim of criminal conversation requires that an 'actual marriage between the spouses and sexual intercourse between defendant and the plaintiff's spouse during the coverture.'" (quoting Brown v. Hurley, 124 N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996))).
C. Discussion
Here, plaintiff has alleged that he is a citizen of North Carolina, defendants are citizens of Virginia, and that the amount in controversy exceeds $75,000. Based on these allegations, the court finds at this time that it has diversity jurisdiction over this case.
Plaintiff does not identify the claims he is attempting to assert. The court construes the allegations in the proposed complaint to purport to assert claims under North Carolina law for alienation of affection and criminal conversation. The court further finds that at this early stage of the proceedings that the claims for alienation of affection and criminal conversation against Kindred are not frivolous and do not suffer from the other deficiencies specified in 28 U.S.C. § 1915(e)(2)(B). Plaintiff alleges that Kindred made sexual advances and engaged in harassing conduct towards plaintiff's wife. He alleges that Kindred's successful pursuit of the resultant dating and sexual relationship with plaintiff's wife culminated in plaintiff and his wife maintaining separate households. These allegations are sufficient to satisfy the court that plaintiff has plausibly asserted claims for alienation of affection and criminal conversation against Kindred.
In contrast, the claims alleged against the remaining defendants, Craig, Newton, and Minton, fail. The allegations against these defendants do not consist of any affirmative conduct or active participation in encouraging the alienation of the spouse's affection towards plaintiff. Rather, the allegations against these defendants amount to their passivity in not stopping Kindred from his pursuit of plaintiff's wife. This does not rise to the level of active interference required to state a claim for alienation of affection. Similarly, there are no allegations that any of these defendants engaged in sexual activity with plaintiff's wife, and no claim for criminal conversation has been asserted against them.
II. MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff moves for partial summary judgment (D.E. 4) on the grounds that no defendants have answered his complaint. Because the frivolity review has not been completed and no summonses have been issued or served, plaintiff's motion is premature. It will therefore be recommended that plaintiff's motion for partial summary judgment be DENIED without prejudice to his filing such a motion later in the proceedings.
III. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that:
1. The claims asserted against defendants Craig, Newton, and Minton be DISMISSED;
2. The case proceed on the claims against Kindred;
3. The motion for partial summary judgment be DENIED without prejudice;
4. The Clerk be DIRECTED to file plaintiff's complaint and issue the summons prepared by plaintiff (D.E. 1-3); and
5. The U.S. Marshal be DIRECTED to serve Kindred by delivering the summons to the address listed for him along with a copy of the complaint, pursuant to Fed. R. Civ. P. 4(i)(2).
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until 28 June 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If plaintiff does not file written objections to the Memorandum and Recommendation by the foregoing deadline, 28 June 2019, plaintiff will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, plaintiff's failure to file written objections by the foregoing deadline will bar her from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
This 14th day of June 2019.
/s/_________
James E. Gates
United States Magistrate Judge