Tucker v. Lance Snacks Co.

Full title: William Earl Tucker, Plaintiff, v. Lance Snacks Co.; Sam's Club; Larry W…

Court: United States District Court, D. South Carolina

Date published: Apr 22, 2008

C/A No. 7:08-1135-CMC-TER (D.S.C. Apr. 22, 2008)

Opinion

C/A No. 7:08-1135-CMC-TER.

April 22, 2008

Report and Recommendation

THOMAS ROGERS, Magistrate Judge

Plaintiff, a detainee at Spartanburg County Jail, alleges that he found metal in a package of peanuts manufactured and distributed by defendant Lance Snacks Company ("Lance"). The discovery has rendered Plaintiff "fobic" (sic) of packed snack products, for which Plaintiff requests $2 million in damages. Plaintiff makes no allegations against the other four defendants. Sam's Club is listed as a defendant but mentioned nowhere else in the Complaint. The remaining three defendants are employees of Spartanburg County Jail; the only mention made of these individuals in the Complaint is contained in Plaintiff's recitation of their roles in providing him with medical care; no allegations of improper behavior of any kind are made against these jail employees. Because there is incomplete diversity of parties, and because Plaintiff makes no claims arising under federal law, the Complaint should be dismissed for lack of subject matter jurisdiction, and for failure to state a claim upon which relief may be granted.

Pro Se and In Forma Pauperis Review

Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint herein pursuant to the procedural provisions of 28 U.S.C. § 1915. This review has been conducted in light of the following precedents: Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); and Gordon v. Leeke, 574 F.2d 1147 (4^th Cir. 1978).

The Complaint sub judice has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted" or is "frivolous or malicious." § 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). Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5^th Cir. 1995).

The court may dismiss a claim as "factually frivolous" under § 1915(e) if the facts alleged are clearly baseless. Denton, 504 U.S. at 31. In making this determination, the court is not bound to accept without question the truth of the plaintiff's allegations, but rather need only weigh the plaintiff's factual allegations in his favor. Id.

This Court is required to liberally construe pro se documents, Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 9 (1980) (per curiam). Even under this less stringent standard, however, the pro se Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if a court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10^th Cir. 1999), or construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7^th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th Cir. 1985).

Discussion

The Complaint must be dismissed for lack of subject matter jurisdiction. In order for this Court to hear and decide a case, the Court must, first, have jurisdiction over the subject matter of the litigation. 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). Because federal courts have limited subject matter jurisdiction, there is no presumption that the Court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), 528 U.S. 1155 (2000) (citing Lehigh Mining Mfg. Co. v. Kelly, 160 U.S. 337, 327 (1895)). 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." Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3) ("Whenever it appears . . . that the court lacks jurisdiction of the subject matter, the court shall dismiss the action").

A plaintiff must allege the facts essential to show jurisdiction in her pleadings. McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936)). See also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4^th Cir. 1985) ("plaintiffs must affirmatively plead the jurisdiction of the court"). To this end, Fed.R.Civ.P. 8(a)(1) requires that a complaint provide "a short plain statement of the grounds upon which the court's jurisdiction depends[.]" If, however, the complaint does not contain "an affirmative pleading of a jurisdictional basis, the federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded." Pinkley at 399 (citing 2 Moore's Federal Practice § 8.03[3] (3d ed. 1997)).

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). If the court, viewing the allegations in the light most favorable to the plaintiff, finds insufficient allegations in the pleadings, the court will lack subject matter jurisdiction. Id.

The Complaint provides no basis for either federal question jurisdiction under 28 U.S.C. § 1331 or diversity jurisdiction under 28 U.S.C. § 1332.

There is no allegation that Defendants have acted under color of state law. In order to state a cause of action under § 1983 (in case that is what Plaintiff is attempting), a plaintiff must allege that: 1) the defendant(s) deprived him of a federal right, and 2) did so under color of state law. Gomez v. Toledo, 446 U.S. 635, 640; American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50; See also Hall v. Quillen, 631 f.2d 1154, 1155-1156 (4^th Cir. 1980).

The district court in Hall v. Quillen had disposed of the case against a physician and a court-appointed attorney on grounds of immunity. In affirming the district court's order, the Fourth Circuit Court of Appeals, however, indicated that lower courts should first determine whether state action occurred:

But immunity as a defense only becomes a relevant issue in a case such as this if the court has already determined affirmatively that the action of the defendant represented state action. This is so because state action is an essential preliminary condition to § 1983 jurisdiction, and a failure to find state action disposes of such an action adversely to the plaintiff.

Hall v. Quillen at 1155 (internal citations omitted).

Although a private individual or corporation can act under color of state law, his, her or its actions must occur where the private individual is "a willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Purely private conduct, no matter how wrongful or discriminatory, is not actionable under 42 U.S.C. § 1983 or under the Fourteenth Amendment. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); Burton v. Wilmington parking Authority, 365 U.S. 715, 721 (1961). Plaintiff has alleged no facts that suggest the actions of the Defendant corporations were anything other than purely private conduct (he simply hasn't alleged any wrongful act or omission against the jail employees, whether private conduct or not). As Plaintiff has failed to allege state action, he has failed to state a claim under § 1983.

Plaintiff has made no allegations that raise any conceivable federal question; thus, he has proffered no basis for federal jurisdiction. Plaintiff appears to attempt to set forth causes of action based in state law against at least one defendant; if so, this Court would not have jurisdiction to hear them. Federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of "supplemental jurisdiction." Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 387 (1998). Since Plaintiff has asserted no federal claims, this Court cannot exercise "supplemental" jurisdiction over Plaintiff's state claims, if any. See Lovern v. Edwards, 190 F.3d 648, 655 (4^th Cir. 1999) ("[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants").

A civil action for any state claims would be cognizable in this Court under the diversity statute, if that statute's requirements are satisfied. Cianbro Corp. v. Jeffcoat Martin, 804 F. Supp. 784, 788-791 (D.S.C. 1992), aff'd, 10 F.3d 806 (4^th Cir. 1993) [Table]. The diversity statute requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). See 28 U.S.C. § 1332(a).

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 Equipment Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978). Sam's Club and Lance may be corporations which are citizens of other states for the purposes of diversity jurisdiction; however, the three employees of the Spartanburg County Jail are almost certainly South Carolina residents, and thus not diverse as to Plaintiff. If these employees are by some bizarre happenstance all citizens of some other state, Plaintiff has failed to plead such. Thus, this Court has no diversity jurisdiction of the case sub judice because Plaintiff and several defendants are citizens of the State of South Carolina. As Plaintiff has not presented this Court with a basis for subject matter jurisdiction, and has failed to state a claim upon which relief may be granted, the Complaint should be dismissed.

RECOMMENDATION

Accordingly, it is recommended that the District Court dismiss without prejudice the Complaint in this case. See United Mine Workers v. Gibbs, 383 U.S. 715 (1966); see also Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972). 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 Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In 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 (4^th Cir. 2005).

Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) (e). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections to:

Larry W. Propes, Clerk

United States District Court

P.O. 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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).