Opinion
No. 7:18-CV-158-D
04-22-2019
CHARLES ALFRED HILL, Plaintiff, v. SOUTHEASTERN MEDICAL CLINIC RED SPRINGS and DR. ROBERT L. HOLLINGSWORTH, Defendants.
MEMORANDUM & RECOMMENDATION
This pro se case is before the court for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by the Honorable James C. Dever III, United States District Judge. For the reasons set forth below, it is recommended that Plaintiff's complaint be dismissed.
DISCUSSION
I. Background
Plaintiff seeks to sue Defendants for medical malpractice for personal injuries allegedly sustained as a result of Defendant Hollingsworth changing his insulin prescription, improperly charging him for visits and treatments he did not receive, "misus[ing] [his] name" on medications, and prescribing him incorrect medications. (Aug. 28, 2018 Prop. Compl. [DE #1-1] at 2-3.)
On March 15, 2019, the court allowed Plaintiff's application to proceed without prepayment of filing fees and ordered Plaintiff to particularize his complaint by filing "a revised complaint containing facts demonstrating the existence of federal subject matter jurisdiction, if any, over his claims." (Mar. 15, 2019, Order [DE #5] at 5). In response to the court's order, Plaintiff has submitted over 200 pages of documents, together with a letter stating, in part: "These are the important details that you requested I send you pertaining to [my] case . . . ." (Letter dated April 2, 2019 & Attachments [DE #6].)
II. Standard for Frivolity Review
Notwithstanding the court's prior determination that Plaintiff is entitled to in forma pauperis status, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give a "short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. The statement must give a defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "A plaintiff must offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001); see also White, 886 F.2d at 723 (affirming district court's dismissal of plaintiff's suit as frivolous where plaintiff's complaint "failed to contain any factual allegations tending to support his bare assertion"). While the court must read the complaint carefully to determine if the plaintiff has alleged facts sufficient to support his claims, White, 886 F.2d at 724, the court is not required to act as the pro se plaintiff's advocate or to parse through volumes of documents or discursive arguments in an attempt to discern the plaintiff's unexpressed intent, Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
III. Analysis
A review of Plaintiff's proposed complaint, as supplemented by his recent filing, continues to raise the threshold issue of subject matter jurisdiction. See 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."). "Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress." Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. See id.
Here, the court ordered Plaintiff to particularize his complaint to demonstrate that this court has federal subject matter jurisdiction over his claims. (Mar. 15, 2019, Order at 4.) Subject matter jurisdiction based on diversity of citizenship between the parties requires (i) that each plaintiff be a citizen of a state different than that of each defendant; and (ii) that the amount in controversy exceed $75,000. See 28 U.S.C. § 1332(a); Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552-53 (2005) (explaining diversity jurisdiction). For diversity jurisdiction, residency alone is insufficient to establish citizenship. Scott v. Cricket Commc'ns, LLC, 865 F.3d 189, 195 (4th Cir. 2017) (quoting Johnson v. Advance America, 549 F.3d 932, 937 n.2 (4th Cir. 2008)). "The burden of establishing subject matter jurisdiction rests with the plaintiff as 'the party asserting jurisdiction.'" AGI Assocs., LLC v. City of Hickory, N.C., 773 F.3d 576, 578 (4th Cir. 2014) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
In response to the court's order to provide additional factual information demonstrating the existence of subject matter jurisdiction, Plaintiff' has submitted 200 pages of documents, including medical records, medication lists, his birth certificate, dates Plaintiff was seen by Defendant Hollingsworth, and correspondence with the North Carolina Medical Board. These documents provide no information regarding the citizenship of Plaintiff and Defendants. In his proposed complaint, Plaintiff lists North Carolina as his state of residence as well as the state of residence for Defendants Hollingsworth and Southeastern Medical Clinic. (Prop. Compl. at 1.) Plaintiff has provided no further information from which the court may infer the existence of diversity jurisdiction.
Furthermore, having reviewed all of Plaintiff's filings, the undersigned discerns no federal constitutional provision or statute that would provide Plaintiff a cause of action over which this court has jurisdiction pursuant to 28 U.S.C. § 1331. Nor does Plaintiff refer to any source of federal question jurisdiction in any of his filings. Plaintiff's medical malpractice dispute is rather "a claim based on state law," to be heard in the state courts absent diversity of citizenship jurisdiction. Khan v. WakeMed, No. 5:18-CV-276-D, 2019 WL 1053645, at *3 (E.D.N.C. Feb. 13, 2019), mem. & recommendation adopted, 2019 WL 1052000 (Mar. 5, 2019) (dismissing plaintiff's medical malpractice claims for lack of subject matter jurisdiction.). Accordingly, the undersigned recommends that Plaintiff's claims be dismissed for lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Plaintiff's claims be dismissed for lack of subject matter jurisdiction. IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. Plaintiff is hereby advised as follows:
You shall have until May 9, 2019, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D.N.C. Dec. 2017).
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 22nd day of April 2019.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge