Opinion
Civil Action 2:22-02552-BHH-MGB
12-05-2022
Stephen J. Green, Plaintiff, v. Brian Sterling, Charles Williams, John Palmer, Amy Enloe, Natasha Harper, Mr. Martin, Ms. Boyd, Ms. Wyantt, D. Lee. Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Stephen J. Green, appearing pro se, originally filed this action in the Court of Common Pleas for Greenville County. (Dkt. No. 1-1.) On August 3, 2022, Defendants Brian Sterling, Charles Williams, John Palmer, Amy Enloe, Natasha Harper, Mr. Martin, Ms. Boyd, Ms. Wyantt, and D. Lee (“Defendants”) removed this action to Federal Court. (Dkt. No. 1.) This matter is now before the Court upon Plaintiff's Motion to Remand. (Dkt. No. 15.) All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), DSC. For the reasons set forth below, the undersigned recommends Plaintiff's motion be denied.
BACKGROUND
Plaintiff brought this action under 42 U.S.C. § 1983 and the South Carolina Constitution. The Complaint alleges that Plaintiff transferred from Mississippi to “supermax” at Kirkland Correctional Institution (“Kirkland”) on July 1, 2021, and from Kirkland to Perry Correctional Institution (“Perry”) on July 9, 2021. (Dkt. No. 1-1 at 5.) According to Plaintiff, his conditions of confinement at Perry were not satisfactory. Specifically, Plaintiff alleges, inter alia, his bed frame was replaced with a “five inch concrete slab” and his room window was “completely covered over with sheet metal,” which prevented Plaintiff “from viewing any of the natural surroundings, such as birds, trees, clouds, or even the sun itself or the sky above.” (Id. at 6.) Plaintiff alleges Defendants Warden Charles Williams and Warden John Palmer failed to properly respond to Plaintiff's complaints about these conditions. (Id. at 7.)
Plaintiff also alleges that his serious medical needs were ignored at Perry, specifically, his “severe lower back pain.” According to Plaintiff, he had several x-rays done in Mississippi, which “yielded no muscular or skeletal damage.” (Id. at 8.) Plaintiff alleges that medical staff in Mississippi had “submitted for approval to have an MRI performed with the appropriate staff here in SCDC.” (Id.) Plaintiff alleges that he had been waiting on MRI approval for over 16 months when he saw Defendant Nurse Practitioner Amy Enloe. (Id. at 9.) According to Plaintiff, Enloe told him he would be signed up for an MRI, but he did not receive one until November 2022. (Id. at 10.) Plaintiff alleges he saw an orthopedic specialist in March of 2022, “who informed Plaintiff that there was a severely pinched nerve in his lower back.” (Id.) Plaintiff alleges another doctor instructed Plaintiff on how to stretch “to relieve some of the pressure of the pinched nerve.” (Id.) Plaintiff alleges he was prescribed ibuprofen. (Id.) Plaintiff alleges that “as of April 9, 2022,” he has not received any other treatment, and his “condition has only gotten worse due to the conditions of the cells and lack thereof, of proper bedding, sitting, writing areas, or standards.” (Id.)
The Complaint alleges that Defendants acted “willfully, wantonly, recklessly, and in a grossly negligent manner, which violated the duty of care and resulted in the plaintiff's pain and suffering.” (Id. at 13.) The Complaint further alleges that Defendants acted with deliberate indifference in violation of the Eighth Amendment. (Id. at 14-16.) Plaintiff originally filed this action in the Court of Common Pleas for Greenville County. (Dkt. No. 1-1.) On August 3, 2022, Defendants removed this action to Federal Court, asserting removal was proper because the Complaint alleges causes of action under the United States Constitution and § 1983. (Dkt. No. 1.) On August 29, 2022, Plaintiff filed a Motion to Remand (Dkt. No. 15), to which Defendants filed a response in opposition on September 9, 2022 (Dkt. No. 17). Plaintiff did not file a reply brief. This Motion has been fully briefed and is ripe for review.
LEGAL STANDARD
“The burden of establishing federal jurisdiction is placed upon the party seeking removal.” Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)). The right to remove a case from state to federal court derives solely from 28 U.S.C. § 1441, which states, in relevant part, that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). On a motion to remand, courts are obligated to “construe removal jurisdiction strictly because of the ‘significant federalism concerns' implicated.” Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (quoting Mulcahey, 29 F.3d at 151). “If federal jurisdiction is doubtful, a remand is necessary.” Mulcahey, 29 F.3d at 151 (citing In re Business Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993); Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 (D.S.C. 1990)).
DISCUSSION
Plaintiff has moved to remand this case to state court, arguing that “while some of Plaintiff's allegations undoubtedly contain violations to the United States Constitution,” he filed the action in state court because it is derived from a “violation of duty of care” created by South Carolina statutory law and the South Carolina Constitution. (Dkt. No. 15 at 1-2.) In his motion, Plaintiff states that “the mere fact that said allegations also contain federal question and/or Eighth Amendment violations, does not deprive or strip the Court of Common Pleas of its jurisdiction to hear and/or try this tort at trial.” (Id. at 2.) Plaintiff asks that he be allowed to amend his Complaint if the Court finds that removal is warranted in its current form. (Id. at 3.)
Upon review, the undersigned finds that the Complaint alleges constitutional violations under § 1983. Accordingly, this Court has jurisdiction under 28 U.S.C. § 1331. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). Because federal question jurisdiction supports removal under 28 U.S.C. § 1441, this action should remain in federal court. See, e.g., Field v. W. Virginia, No. 2:20-cv-00147, 2020 WL 8085176, at *4 (S.D. W.Va. Dec. 16, 2020) (recommending denying motion to remand where complaint alleges violations of plaintiff's constitutional rights under the Eighth and Fourteenth Amendments of the United States Constitution), adopted by, 2021 WL 77464 (S.D. W.Va. Jan. 8, 2021); S.C. Dep't of Soc. Servs. v. Capers, No. 1:17-cv-1418-JMC-SVH, 2017 WL 9289438, at *1 (D.S.C. June 9, 2017) (“A federal court should remand the case to state court if there is no federal subject matter jurisdiction evident from the face of the notice of removal and any state court pleadings provided.”), adopted by, 2017 WL 6462405 (D.S.C. Dec. 19, 2017).
Per the Scheduling Order, any motions to amend the Complaint are due by October 26, 2022. (Dkt. No. 22.) Accordingly, if Plaintiff wishes to amend his complaint and remove his claims alleging violations of the United States Constitution, he should file the requisite motion to amend by October 26, 2022.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Plaintiff's Motion to Remand (Dkt. No. 15) be DENIED.
IT IS SO RECOMMENDED.
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 835 Charleston, South Carolina 29402
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).