Opinion
C. A. 8:23-32-BHH-KDW
03-21-2023
Andrew Marshall McElrath, Plaintiff, v. MetaQuest; Facebook, Inc.; Regina Wells, Mark Zuckerberg; Johnny Howell, Sr.; and Johnny Howell, Jr., Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Andrew Marshall McElrath (“Plaintiff”), proceeding pro se, filed this Amended Complaint against MetaQuest, Facebook, Inc., Regina Wells, Mark Zuckerberg, Johnny Howell, Sr., and Johnny Howell, Jr. concerning a violation of his civil rights. 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 10, 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. 30. The order further advised Plaintiff he had until March 24, 2023, to file an amended complaint or otherwise cure the identified deficiencies in his pleadings. Id. Plaintiff filed an Amended Complaint on March 20, 2023. ECF No. 38.
In his Amended Complaint, Plaintiff alleges Defendants violated the terms of service of a United States government website by making an unreasonable seizure of Plaintiff's criminal records. ECF No. 38 at 1. Plaintiff claims these actions violated his Fourth Amendment right that guarantees his papers and effects be free from unreasonable seizures. Id. Plaintiff says Defendants used these records in a cruel and unusual way to support slandering statements and false allegations made online about Plaintiff. Id. Plaintiff alleges Defendants republished these records on social media to cause Plaintiff humiliation and degradation. Id. at 2. Plaintiff contends “this brings to existence an 8th Amendment violation of the United States Constitution of America which [guarantees] the plaintiff the right to be free of cruel and unusual punishment . . .” Id. Plaintiff claims Defendants used his records to support these false allegations in an attempt to punish Plaintiff for a crime he has not been found guilty of, which Plaintiff contends is cruel and unusual punishment, and an 8th amendment violation. Id. Plaintiff says Mark Zuckerberg, MetaQuest, and Facebook Inc. are from California, with a business license from California, which makes them an agency of the state. Id. at 2-3.
II. Discussion
A. Standard of Review
Plaintiff filed his 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 two 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 Amended 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 and Defendants Johnny Howell, Sr., Johnny Howell, Jr, and Regina Wells are South Carolina citizens. Accordingly, Plaintiff has failed to demonstrate facts to satisfy the requirements for diversity jurisdiction.
See ECF No. 22. The court takes judicial notice of Plaintiff's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.”).
To establish federal question jurisdiction, the essential allegations in Plaintiff's Amended Complaint must show that the case is one “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Plaintiff alleges Defendants' actions violated the Fourth and Eighth Amendments of the United States Constitution. ECF No. 38. Plaintiff must allege two essential elements to state a claim under 42 U.S.C. § 1983: (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). Plaintiff claims Defendants violated the terms of a United States government website when they took Plaintiff's criminal records from this website and used these records to slander Plaintiff. ECF No. 38. However, Plaintiff's allegations reference purely private conduct, and no matter how wrongful or injurious, such conduct is not actionable under § 1983. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721 (1961). The fact that Defendants Mark Zuckerberg, MetaQuest, and Facebook Inc. are alleged to have a California business license does not make their alleged actions to be under the color of state law. See Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (explaining “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State.”); Spence v. Connor, No. 3:10CV1925(MRK), 2010 WL 7865084, at *3 (D. Conn. Dec. 16, 2010) (“[N]ot all persons who hold state-issued professional licenses are state actors.”). Plaintiff has not shown that the court has either diversity or federal question jurisdiction over his claims, therefore, his Amended Complaint is subject to summary dismissal.
III. Conclusion and Recommendation
By order issued on March 10, 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).