Opinion
C. A. 3:23-cv-03497-JD-KFM
08-08-2023
Shannon R. Wazney, Plaintiff, v. Robert W. Wazney, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
Defendant Robert W. Wazney (“Mr. Wazney”), proceeding pro se, removed the present action from the Sumter County Family Court (doc. 1), alleging federal jurisdiction arises out of alleged civil rights violations he has suffered in the family court action (id.). The docket number for the underlying action was Case No. 2021-DR-43-001168 (id.). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
BACKGROUND
This case arises from a divorce filed by the plaintiff in the Sumter County Family Court (2015-DR-43-0046) and a related property division case in the Sumter County Family Court (2021-DR-43-01168) (doc. 1). The court takes judicial notice of the underlying case files in the Sumter County Family Court, along with prior actions filed by Mr. Wazney in this court attempting to remove his underlying divorce case. See Wazney v. Wazney, C/A No. 2015-DR-43-0046 (Sumter Cty. Family Ct.); see also Wazney v. Wazney, C/A No. 3:20-cv-02399-HMH (D.S.C.); Wazney v. Wazney, C/A No. 3:19-cv-01256-HMH, (D.S.C.); Wazney v. Wazney, C/A No. 3:17-cv-2873-HMH-KFM (D.S.C.). In the instant action, Mr. Wazney contends that the Sumter County Family Court has violated his civil rights by denying him due process (doc. 1). Mr. Wazney asserts federal question jurisdiction because his civil rights have been violated (id.).
Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'”).
STANDARD OF REVIEW
As a pro se litigant, Mr. Wazney's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
Motion for Leave to Proceed In Forma Pauperis
As noted above, Mr. Wazney, the removing party, filed a motion for leave to proceed in forma pauperis (doc. 2). However, Mr. Wazney may not remove this action without prepayment of the filing fee because he is subject to the “three-strikes” rule of the Prisoner Litigation Reform Act (“PLRA”), which provides:
In no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g) (emphasis added). Regardless of dismissal being with or without prejudice, a “strike” is based on the dismissal basis alone. Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1725 (2020). “A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.” Id. at 1727.
Here, Mr. Wazney has three actions that were dismissed for failure to state a claim and one that was dismissed as frivolous. See Wazney v. Campbell, C/A No. 6:21-cv-04063-JD, at doc. 23 (D.S.C. Apr. 1, 2022) (dismissed as frivolous), aff'd C/A No. 226485 (4th Cir. Sept. 27, 2022); Wazney v. Nelson, C/A No. 6:20-cv-03366-JD, 2022 WL 1004580 (D.S.C. Apr. 1,2022) (dismissed failure to state a claim), aff'd 2022 WL 4482059 (4th Cir. Sept. 27, 2022); Wazney v. State of S.C., C/A No. 6:18-cv-02610-HMH (D.S.C. Nov. 20, 2018) (dismissed failure to state a claim), aff'd C/A No. 19-3084 (4th Cir. May 29, 2019), cert denied C/A No. 19-6084 (2020); Wazney v. Chase, et al., C/A No. 3:17-cv-03216-HMH, 2018 WL 1491680 (D.S.C. Mar. 26, 2018) (dismissed failure to state a claim), aff'd 735 Fed.Appx. 113 (4th Cir. 2018), cert denied 140 S.Ct. 173 (2019), petition for r'hrg denied 140 S.Ct. 928 (2020).
Accordingly, Mr. Wazney has received at least three dismissals which count as strikes. The three-strikes rule was enacted to bar prisoners, such as Mr. Wazney, from pursuing certain types of federal civil litigation without prepayment of the filing fee. As such, Mr. Wazney is barred from proceeding in this action in forma pauperis unless he has plausibly alleged that he is under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The imminent danger exception to § 1915(g)'s “three strikes” rule is to be narrowly construed and a prisoner must allege imminent danger at the time the complaint was filed, not that he has faced imminent danger in the past. Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006) (unpublished per curiam opinion). Here, Mr. Wazney has not alleged any imminent danger of harm. Indeed, his notice of removal only alleges violations of his rights in property division proceedings in the Sumter County Family Court - with no reference to injuries, imminent or otherwise (see doc. 10). As such, the undersigned recommends that Mr. Wazney's motion to proceed in forma pauperis (doc. 2) be denied.
Subject Matter Jurisdiction
Even if Mr. Wazney could proceed in forma pauperis in this action, the court lacks subject matter jurisdiction to consider it and the matter should be remanded. “The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). 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). Since 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) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (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) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). Federal question jurisdiction, as alleged herein, arises when the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. As noted, Mr. Wazney alleges federal question jurisdiction in this action due to violations of his due process and civil rights in the underlying divorce property division proceedings (see doc. 1). Nevertheless, the cause of action in the Sumter County Family Court - divorce and property division - is a matter strictly reserved to the state courts. See S.C. Code Ann. § 20-3-50 (recognizing that divorce proceedings fall under the equity jurisdiction of the state courts); Ex Parte Burrus, 136 U.S. 586, 593-94 (1890) (noting that it is well-settled that the “whole subject of the domestic relations of husband and wife . . . belongs to the laws of the states, and not the laws of the United States”). As such, the underlying family court action does not involve claims arising under the Constitution or federal laws (nor do the documents indicate that the claims depend on the resolution of a substantial question of federal law) so as to confer federal question subject matter jurisdiction on the court pursuant to 28 U.S.C. § 1331. See Marshall v. Marshall, 547 U.S. 293, 308 (2006) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 703, 704 (1992)) (recognizing that ‘“divorce, alimony, and child custody decrees' remain outside federal jurisdictional bounds”). Further, Mr. Wazney has not manufactured federal question jurisdiction in the present matter by referencing violations of his civil or due process rights. See Gully v. First Nat' Bank, 299 U.S. 109, 113 (1936) (noting the basis of federal question jurisdiction must be “disclosed upon the face of the complaint, unaided by the answer or by the petition for removal”).
Moreover, as noted above, this is Mr. Wazney's fourth attempt to remove his divorce proceeding to this court based upon his dissatisfaction of its course in the South Carolina courts. Wazney v. Wazney, C/A No. 3:20-cv-02399-HMH, at doc. 44 (D.S.C. Oct. 22, 2020) (remanding sua sponte the divorce proceeding for lack of subject matter jurisdiction and finding the action frivolous), appeal dismissed C/A No. 20-7567 (4th Cir. July 1, 2021); Wazney v. Wazney, C/A No. 3:19-cv-01256-HMH, 2019 WL 12239651 (D.S.C. June 12, 2019) (remanding sua sponte the divorce proceeding for lack of subject matter jurisdiction and finding the action frivolous); appeal dismissed 785 Fed.Appx. 139 (4th Cir. 2019); Wazney v. Wazney, C/A No. 3:17-cv-2873-HMH, 2018 WL 1491691 (D.S.C. Mar. 26, 2018) (remanding sua sponte the divorce proceeding for lack of subject matter jurisdiction), appeal dismissed 735 Fed.Appx. 835 (4th Cir. 2018), cert. denied 140 S.Ct. 188 (2019), petition for r'hrg denied 140 S.Ct. 927 (2020). Thus, this action is also frivolous and substantively without merit. See Nagy v. FMC Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (explaining that “[t]he word ‘frivolous' is inherently elastic and ‘not susceptible to categorical definition.'”); Worley v. Keller, 475 Fed.Appx. 484 (4th Cir. 2012) (a suit is frivolous if it lacks an arguable basis in law or fact). Accordingly, this court lacks subject matter jurisdiction to accept removal from the state family court to consider Mr. Wazney's claims, and the case should be remanded, sua sponte, pursuant to 28 U.S.C. § 1447(c).
RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the plaintiff's motion to proceed in forma pauperis (doc. 2) be denied. IT IS Further recommended that the District Court sua sponte Remand this case to the Sumter County Family Court for lack of subject matter jurisdiction. As noted in more detail above - in addition to being frivolous - the present action is repetitive of three earlier actions in this court attempting to remove the same family court action. It is further recommended that the United States District Judge assigned to this case warn Mr. Wazney regarding the entry of sanctions in the future should he continue to file frivolous litigation in this court. The attention of the parties is directed to the important notice on the following page.
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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).