Opinion
C/A 8:23-799-BHH-KDW
05-02-2023
Andrew Marshall McElrath, Plaintiff, v. Claudia Diane Evans and Edward Eddie Evans, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Andrew Marshall McElrath, (“Plaintiff”), proceeding pro se, filed this action against Claudia Diane Evans and Edward Eddie Evans concerning their handling of his late father's estate. 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. For the reasons that follow, the undersigned recommends the district judge dismiss the Amended Complaint.
I. Factual and Procedural Background
On March 2, 2023, the court issued an order notifying Plaintiff that his Complaint was subject to summary dismissal because he failed to allege sufficient factual allegations to establish the court had jurisdiction over his claims. ECF No. 10. The order further advised Plaintiff he had until March 16, 2023, to file an amended complaint or otherwise cure the identified deficiencies in his pleadings. Id. Plaintiff filed an Amended Complaint on March 27, 2023. ECF No. 16.
In his Amended Complaint, Plaintiff alleges Evansmade an unreasonable seizure of approximately $400,000 worth of property left in his home. ECF No. 16 at 5. Plaintiff says he was born and raised in Starr, South Carolina, at 440 McElrath Road. Id. at 14. Plaintiff claims he is the last-born son of James Douglas McElrath's six children. Id. Plaintiff alleges his father owned land from 346 McElrath Road to 500 McElrath Road in Starr. Id. Plaintiff says his father gave each child his or her own lot to live on and Plaintiff was given the 440 lot. Id. Plaintiff claims his lot is approximately two acres. Id. at 15. Plaintiff alleges he lived at 440 McElrath Road until 2012, when he began serving a nine-year sentence in the South Carolina Department of Corrections. Id. at 15. Plaintiff says growing up he collected NASCAR diecast cars, 1.23-1.26 scale. Id. Plaintiff says his collection had a face value of approximately $250,000 to $300,000. Id. Plaintiff alleges his collection doubled or tripled in value following the death of Dale Earnhardt. Id. Plaintiff claims he also collected knives, worth approximately $10,000, and deer head mounts worth approximately $20,000, power tools worth approximately $5000, and clothes valued at approximately $2000. Id. at 16. Plaintiff alleges he built a fence around his land worth approximately $10,000. Id. Plaintiff contends he also had two additions built on or around his father's mobile home which costs him $40,000. Id. Plaintiff says his lot of land is worth approximately $33,000. Id. Plaintiff also claims he had 1.5-gallon jars full of silver John F. Kennedy half dollar pieces, quarters, and buffalo nickels. Id. at 17. Plaintiff states the approximate value of his real property is $400,000. Id. Plaintiff claims his property was unreasonably seized by Evans while he was incarcerated violating his Fourth Amendment rights. Id. Plaintiff alleges his father initially wrote a will leaving Plaintiff his gun collection, pick-up truck and a mobile home located at 440 McElrath Road. Id. at 18. Plaintiff claims his sister Claudia Diane Evans and her husband Edward Evans forced his father to draft a new will a few days before he died that named them the personal representatives of his father's estate. Id. at 20. Plaintiff alleges his father's new will left him 1/6 of the total value of his estate. Id. at 21. Plaintiff claims the Evans, who were appointed the personal representatives of his father's estate, never gave Plaintiff his 1/6 share of the estate worth approximately $12,000. Id. Plaintiff says he has also not received his lot of land, his personal property, or his share of his father's life insurance policy. Id.
Plaintiff does not indicate whether it was Claudia Diane Evans, Edward Eddie Evans, or both.
II. Discussion
A. Standard of Review
Plaintiff filed this Amended 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).
Pro se 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. 1990).
B. Analysis
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, 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 Cir. 1999).
There 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 (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. The most commonly 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.
Plaintiff fails to allege sufficient facts to state jurisdiction under diversity of citizenship. 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 fails to demonstrate facts to satisfy the requirements for diversity jurisdiction as Plaintiff and Defendants are South Carolina citizens. Therefore, the court does not have diversity jurisdiction over this case.
Plaintiff has also failed to allege sufficient facts to establish his case is one “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Plaintiff asserts Defendants violated his constitutional rights when they illegally seized his real and personal property. To state a claim under 42 U.S.C. § 1983, Plaintiff must allege: (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). Although Plaintiff claims Claudia Diane and Edward Evans violated his Fourth Amendment rights while handling his father's estate, Plaintiff has failed to establish their actions were under the color of state law. Courts have routinely held that a court appointed personal representative of an estate is not a state actor for the purposes of § 1983, and purely private conduct is not actionable under § 1983. See Witte v. Young, No. 2:14-cv-2439-TLN-EFB PS, 2015 WL 5232681, at *4 (E.D. Cal. Sept. 8, 2015) (collecting cases); Cummings v. LaCorte, No. 10-0051(SDW), 2010 WL 2710589, at * 3 (D.N.J. July 7, 2010); Lugar v. Edmondson Oil Co., 457 U.S. 922, 940 (1982). Because Plaintiff has not shown the court has jurisdiction over his claims, his Amended Complaint is subject to summary dismissal.
III. Conclusion and Recommendation
By order issued on March 2, 2023, the undersigned gave Plaintiff an opportunity to correct the defects in his Complaint and further warned Plaintiff that if he failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed without leave for further amendment. As discussed herein, Plaintiff's Amended Complaint fails to correct the deficiencies, and like the original Complaint, fails to establish the court's jurisdiction over his claims. The undersigned recommends the court dismiss the Amended Complaint without prejudice and without issuance and service of process.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 Post Office Box 2317 Florence, South Carolina 29503
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).