Opinion
C/A No. 3:21-cv-136-TMC-MHC
02-16-2021
Dennis Gallipeau, Plaintiff, v. State Law Enforcement Division, Richland County Sheriff's Department, and Caraly Alvarez, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, filed this action in the Court of Common Pleas of Richland County, South Carolina, alleging two causes of action related to the sex offender public registry. ECF No. 1-1. Defendants Richland County Sheriff's Department ("RCSD") and Caraly Alvarez, with the consent of Defendant State Law Enforcement Division ("SLED"), removed the case to this Court on January 13, 2021. ECF No. 1.
Before the Court is Plaintiff's Motion to Remand ("Motion"), filed on January 19, 2021. ECF No. 10. All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), D.S.C. Because the Motion is a dispositive motion, this Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Court grant Plaintiff's Motion.
BACKGROUND
On December 7, 2020, Plaintiff filed this action in the Court of Common Pleas in Richland County, South Carolina. In his Complaint, Plaintiff asserts that this "is an action seeking injunctive relief, actual, compensatory and punitive damages, alleging acts of gross negligence under the South Carolina Tort Claims Act and violations of the state constitution." ECF No. 1-1. at 2.
In Count 1 of his Complaint, Plaintiff alleges that employees of SLED and RCSD were grossly negligent by, inter alia, including Plaintiff on SLED's public sex offender registry, publishing the wrong crime on the registry, and classifying Plaintiff as a Tier II offender in violation of SORNA and SMART regulations, as well as SLED's own Substantial Implementation plan. Id. at 5 ¶ 16. Plaintiff further alleges that "the actions of these state employees constitute, among other torts, publishing knowingly false information to the general public, slander, libel and defamation of character." Id. at 5 ¶ 18. He further alleges that "the defendants denied him the privileges and immunities, due process and equal protection rights guaranteed under Article I Section 3 of our state constitution, inflicted cruel and unusual punishment prohibited under Article I Section 15 of our state constitution," and violated "Plaintiff's privacy rights guaranteed and secured by Article I Section 10 of our state constitution." Id. at 6 ¶ 22. Plaintiff seeks injunctive relief and an award of monetary damages in excess of $25,000 against SLED and RCSD.
In Count 2 of his Complaint, Plaintiff alleges that he went to RCSD headquarters to report intimidation from his neighbor, who had been harassing and threatening him for over a year since she found out that he is a sex offender. Id. at 8 ¶ 28. Plaintiff alleges that the case was assigned to Defendant Alvarez, an investigator employed by RCSD. Id. at ¶ 29. According to Plaintiff, "Alvarez knew that Plaintiff was at a substantial risk of harm but failed to act or take steps to protect Plaintiff (from the very harm that they themselves caused plaintiff to suffer at the hands of his neighbors) and knew or should have known that Plaintiff's personal safety was at risk." Id. at ¶ 30. Plaintiff alleges that Alvarez "had a sufficiently culpable state of mind to show her deliberate indifference to Plaintiff's state and federal rights, to the law, and to her duty to protect the public." Id. at ¶ 31. He alleges that she "refused to protect him from a foreseeable, credible, risk of harm to Plaintiff himself and to his property," showed "deliberate indifference to Plaintiff's health and safety," denied Plaintiff "equal protection of the laws in violation of the state constitution," acted with actual malice, and "performed her duties in a grossly negligent manner." Id. at 9 ¶¶ 34-37. Plaintiff seeks an award of compensatory and punitive damages against Alvarez. Id. at 9.
On January 13, 2021, RCSD and Alvarez removed this case to this Court, asserting that the Court had original jurisdiction over this action because Plaintiff sought to recover against Defendant Alvarez, pursuant to 42 U.S.C. § 1983, for alleged actions constituting deliberate indifference in contravention of Plaintiff's federal constitutional rights. ECF No. 1 at ¶ 1.
LEGAL STANDARD
A defendant may remove a civil action brought in state court if the case originally could have been brought in a federal district court. See 28 U.S.C. § 1441(a). ("[A]ny 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 . . . to the district court of the United States for the district and division embracing the place where such action is pending."). "The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction, In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
The court is "obliged 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) (en banc) (quoting Mulcahey, 29 F.3d at 151). "Therefore, if federal jurisdiction is doubtful, a remand to state court is necessary." Id. (internal quotation marks omitted); see also Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999) ("[C]ourts should resolve all doubts about the propriety of removal in favor of retained state court jurisdiction." (quotation marks omitted)).
DISCUSSION
Plaintiff moves to remand this case to state court, arguing that Defendants wrongfully seized on the one use of the word "federal" in his Complaint, contained in paragraph 31, to assert that Plaintiff has alleged a claim against Alvarez under 42 U.S.C. § 1983. ECF No. 10 at 1. Plaintiff argues that this was error, as his "complaint does not allege any federal cause of action against any of the named defendants in this action." Id. at 2 (emphasis in original). He maintains that this Court does not have jurisdiction over this case and that remand is warranted. ECF No. 10 at 2.
Plaintiff also argues that after this action was removed, he amended his complaint in State court, removing the word "federal" from paragraph 31 so that it now reads, "Plaintiff alleges that Alvarez knew Plaintiff's complaint was sufficiently serious as to warrant investigation and had a sufficiently culpable state of mind to show her deliberate indifference to Plaintiff's state constitutional rights, and state law, and to her duty to protect the public under state law." Id.; ECF No. 10-1 at ¶ 31. However, "when evaluating the propriety of removal, the district court must determine the nature of plaintiff's claims from the face of the complaint at the time the petition for removal was filed." Donaldson v. City of Walterboro Police Dep't, 466 F. Supp. 2d 677, 679 (D.S.C. 2006) (internal quotation marks omitted).
Defendants Alvarez and RCSD filed a response in opposition to Plaintiff's Motion, arguing that removal was appropriate because this Court has original jurisdiction pursuant to 28 U.S.C. § 1331. ECF No. 11 at 1. Specifically, Defendants contend that Plaintiff's use of the phrase "deliberate indifference to Plaintiff's state and federal rights" establishes the basis for federal question jurisdiction because the "legal concept of deliberate indifference against governmental actors pursuant to Section 1983 is exclusively a federal question." Id. at 2 (citing ECF No. 1-1 at ¶ 31). They further assert that "there is no state court counterpart in South Carolina which would establish deliberate indifference as a cognizable standard of fault," nor any statutory scheme in South Carolina that would enable a citizen to bring a private right of action for civil damages under the state constitution. Id. at 3 & n.2. Defendants conclude that original federal jurisdiction exists because "Plaintiff's Complaint recites the deliberate indifference standard almost verbatim . . . while alleging that Alvarez failed to act and/or protect him from third persons despite a general knowledge of the risk," such that Plaintiff "raises a federal question regarding his claims that this Defendant violated his constitutional rights." Id. at 3-4.
In his Reply, Plaintiff argues that his references to deliberate indifference support his claim for punitive damages under South Carolina law and are not indicative of federal law. ECF No. 13 at 2; see ECF No. 1-1 at 9. He cites Mitchell, Jr. v. Fortis Ins. Co., 686 S.E.2d 176 (S.C. 2009), in which the South Carolina Supreme Court set forth the factors a court should consider when reviewing an award of punitive damages. The Mitchell court explained that when considering the degree of reprehensibility of a defendant's conduct, a court should consider, inter alia, whether "the tortious conduct evinced an indifference to or a reckless disregard for the health or safety of others." Id. at 185. The court then concluded that the defendant in that case had been "deliberately indifferent to its contractual obligations and to [the plaintiff's] health and wellbeing" and that the defendant engaged in "repeated acts of deliberate indifference for more than two years." Id. at 186 (emphasis added). Citing Mitchell, Plaintiff contends that he "used the language necessary under South Carolina law to support his demand for punitive damages[,] not for some Alice in Wonderland fantasy in which these crafty defendants not only assert out-of-this world defenses but attempt to rewrite plaintiff's claims as well." ECF No. 13 at 2.
Upon review of the allegations in the Complaint and the parties' arguments, the undersigned concludes that Defendants have failed to carry their burden of establishing federal jurisdiction over this case. See Mulcahey, 29 F.3d at 151.
Section 1331 grants district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Federal question jurisdiction exists "only when a federal question is presented on the face of the plaintiff's properly-pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); see King v. Marriott Int'l Inc., 337 F.3d 421, 424 (4th Cir. 2003) ("Under the venerable well-pleaded complaint rule, jurisdiction lies under section 1331 only if a claim, when pleaded correctly, sets forth a federal question[.]").
Plaintiff is the master of his claim, and he may avoid federal jurisdiction by exclusive reliance on state law. Donaldson v. City of Walterboro Police Dep't, 466 F. Supp. 2d 677, 679 (D.S.C. 2006); see also Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 809, n.6 (1986) ("Jurisdiction may not be sustained on a theory that the plaintiff has not advanced."). Under the well-pleaded complaint rule, courts "ordinarily . . . look no further than the plaintiff's complaint in determining whether a lawsuit raises issues of federal law capable of creating federal-question jurisdiction under 28 U.S.C. § 1331." Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir. 1996). Accordingly, "a claim in which the federal question arises only as a defense to an otherwise purely state law action does not 'arise under' federal law, and hence jurisdiction would not lie under section 1331." King, 337 F.3d at 424 (4th Cir. 2003) (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 12 (1983)).
A mere reference to federal law in the complaint is not sufficient to establish federal question jurisdiction. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) ("The mere assertion of a federal claim is not sufficient to obtain jurisdiction[.]") (citing Davis v. Pak, 856 F.2d 648, 650 (4th Cir. 1988) (dismissing § 1983 claims for lack of subject matter jurisdiction because the federal claims were insubstantial and were pretextual state claims)); see also Ashby v. Isle of Wight Cty. Sch. Bd., 354 F. Supp. 2d 616, 631 (E.D. Va. 2004) ("A mere allegation that a federal statute has been violated is not sufficient.") (citing Mulcahey, 29 F.3d 148). Rather, federal question jurisdiction "requires that a party assert a substantial federal claim." Lovern, 190 F.3d at 654 (emphasis in original). Moreover, a plaintiff's claim arises under federal law "only when every legal theory supporting the claim requires the resolution of a federal issue." Dixon, 369 F.3d at 816 (emphasis in original). "In other words, if the plaintiff can support his claim with even one theory that does not call for an interpretation of federal law, his claim does not 'arise under' federal law for purposes of § 1331." Id. at 817. Accordingly, a defendant seeking to remove a case on the basis of federal question jurisdiction must establish two things: "(1) that the plaintiff's right to relief necessarily depends on a question of federal law, and (2) that the question of federal law is substantial. If either of these two elements is lacking, removal is improper[,] and the case should be remanded to state court." Id. at 816.
Here, Defendants have failed to establish either requirement. First, although Defendants suggest otherwise, Plaintiff has not asserted a claim under § 1983, and his mere reference to a violation of his federal rights in Count II is insufficient to establish federal jurisdiction. See Lovern, 190 F.3d at 654; Davis, 856 F.2d at 650. Moreover, the undersigned is wholly unpersuaded by Defendants' suggestion that the concept of deliberate indifference "is exclusively a federal question." ECF No. 11 at 2; compare Mitchell, 686 S.E.2d at 186. Further, even if Plaintiff's Complaint could be read as raising a question of federal law, Defendants have failed to show that Count II "necessarily depends on" a question of federal law, such that "every legal theory" advanced by Plaintiff in Count II requires resolution of a federal issue. Dixon, 369 F.3d at 816. To the contrary, Plaintiff advanced at least two theories of liability that sound in state law, alleging that Alvarez was "grossly negligent" and "denied Plaintiff equal protection of the laws in violation of the state constitution." ECF No. 1-1 at 9 ¶¶ 35, 37. Simply put, Defendants have failed to show that Plaintiff raised "a substantial federal claim" in his Complaint. Lovern, 190 F.3d at 654. Accordingly, the undersigned concludes that the Court lacks subject matter jurisdiction over this matter and that Plaintiff's Motion to Remand should be granted.
Plaintiff also seeks sanctions under Rule 11. A federal court has the "inherent power to control the judicial process and litigation," Nucor Corp. v. Bell, 251 F.R.D. 191, 194 (D.S.C. 2008), and to "sanction litigants for misbehavior in the judicial process," White v. Raymark Indus., Inc., 783 F.2d 1175, 1177 (4th Cir. 1986). However, "[t]he key to unlocking a court's inherent power is a finding of bad faith." Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001) (alteration in original) (citing Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998)). Finding no evidence of bad faith, the undersigned concludes that sanctions are not appropriate in this matter. Therefore, Plaintiff's request for sanctions is denied.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Plaintiff's Motion to Remand (ECF No. 10) be GRANTED and that the case be REMANDED to state court.
The parties are referred to the Notice Page attached hereto. February 16, 2021
Charleston, South Carolina
/s/_________
Molly H. Cherry
United States Magistrate Judge
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).