Opinion
5:22-CV-532-M
03-06-2023
ROSE MARIE DUNN JR., Plaintiff, v. FLOYD J. PATTERSON, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. J ES, JR., UNITED STATES MAGISTRATE JUDGE
This matter is before the court on pro se Plaintiff Rose Marie Dunn Jr.'s application to proceed in forma pauperis and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1]. Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed because the claim is time barred and the court lacks jurisdiction.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition.... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252,256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden., Md. House of Corr, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . . Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
IL DISCUSSION
Plaintiff alleges that Floyd Patterson kicked and injured her when she was a child. Compl. [DE-1-3]; Suppl. [DE-4, -8]. Liberally construing Plaintiff's complaint, it appears she attempts to bring a personal injury claim against Defendant. The statute of limitations for a personal injury claim under North Carolina law is three years. N.C. Gen. Stat. § 1-52(5); Shreve v. Wolfe, No. 5:21-CV-98-BO, 2021 WL 3824674, at *5 (E.D. N.C. Aug. 26,2021). Plaintiff is now in her fifties, [DE-1] at 5, and therefore, any personal injury claim is time barred. Furthermore, there are no facts alleged in the complaint that would support equitable tolling. See Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (equitable tolling has generally been applied where “the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant” or where “extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time” and is “reserved for those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result”).
The court may raise a statute of limitations defense sua sponte when a complaint is filed in forma pauperis pursuant to 28 U.S.C. § 1915. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006) (citing Nasim, 64 F.3d at 95354); Hall v. Cumberland Cnty., No. 5:17-CV-348-FL, 2017 WL 5986468, at *3 (E.D. N.C. Sept. 14, 2017), adopted by 2017 WL 5973406 (E.D. N.C. Dec. 1, 2017).
Plaintiff has also failed to state a claim over which the court can exercise its federal question or diversity jurisdiction. The court may exercise jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A personal injury claim is a state law tort claim not actionable under 42 U.S.C. § 1983. See Knight v. Pickens Cnty. Det. Ctr, No. 8:22-CV-03173-TMC-JDA, 2022 WL 17084351, at *4 (D.S.C. Oct. 18, 2022) (“[S]tate law tort claims are not actionable under § 1983.”) (citing Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)), report and recommendation adopted, No. 8:22-CV-3173-TMC, 2022 WL 17082904 (D.S.C. Nov. 18, 2022). Thus, Plaintiff has failed to state a federal claim over which the court can exercise jurisdiction. An action lies within the federal district court's diversity jurisdiction “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between .. . citizens of different States . . . .” 28 U.S.C. § 1332(a)(1). Plaintiff and Defendant are both residents of Wendell, North Carolina, and therefore, there is no diversity jurisdiction. See Allen v. City of Raleigh Police Dep't, No. 5:22-CV-82-M, 2022 WL 2443473, at *3 (E.D. N.C. Apr. 20,2022) (finding no diversity jurisdiction with respect to state law claims because “(c]omplete diversity among the parties is required, which means that no defendant can have the same citizenship as any plaintiff.”) (citing Wisconsin Dep't of Corrs, v. Schacht, 524 U.S. 381,388 (1998); Hawkins v. i-TVDigitalis Tavkozlesi zrt., 935 F.3d 211,222 (4th Cir. 2019)).
Accordingly, because Plaintiff's personal injury claim is time barred and there is no basis for the court to exercise jurisdiction, it is recommended that Plaintiff's personal injury claim be dismissed without prejudice.
III. CONCLUSION
For the reasons stated above, Plaintiff's application to proceed in forma pauperis is allowed, and it is recommended that the complaint be dismissed without prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until March 20, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or 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 you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you 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, your failure to file written objections by the foregoing deadline will bar you 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).