Robbins
v.
DSS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINAJul 26, 2018
C/A No.: 3:18-1973-CMC-SVH (D.S.C. Jul. 26, 2018)

C/A No.: 3:18-1973-CMC-SVH

07-26-2018

Bobby Robbins, Plaintiff, v. DSS; Tina Kinsler; Jhante Robbins; School Board; Richland County Police Department; Mental Health; Main Street 1701; Ms. Foster; Ms. Jeter; Sonya Good; Kendra Martin; and LaDawn, Defendants.


REPORT AND RECOMMENDATION

Bobby Robbins ("Plaintiff"), proceeding pro se and in forma pauperis, filed this complaint alleging personal injury claims against his children's mother, Tina Kinlser ("Kinsler"), and his daughter, Jhente Robbins ("Jhante"). [ECF No. 1]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the complaint without prejudice and without issuance and service of process. I. Factual and Procedural Background

Plaintiff alleges Kinsler caused him to be placed on the child abuse registry and his godchildren to be placed in foster care. [ECF No. 1 at 3]. Plaintiff claims Kinsler used his children as "human weapons to kill," and states Kinsler and Jhente tried to get his son to murder Plaintiff's best friend. Id. at 3, 5. Plaintiff asks the court to remove his child support bench warrant because Kinsler was ordered to pay him child support and she never paid. Id. at 5. Plaintiff also requests a divorce from Mrs. Martin. Id. II. Discussion

Monique Barnes first tried to file an action on behalf of Plaintiff in Barnes v. DSS, et al., C/A No. 3:18-1567-CMC. The attachments to Plaintiff's complaint in the instant case appear identical to the attachments to Ms. Barnes' amended complaint in her case.

A. Standard of Review

Plaintiff filed this action pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying 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 an action fails to state a claim on which relief may be granted or is frivolous or malicious. Pursuant to 28 U.S.C. § 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). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995).

Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

B. Analysis

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). 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." Id. 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."). 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).

There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) ("[P]laintiffs must affirmatively plead the jurisdiction of the federal court."). To this end, Fed. R. Civ. P. 8(a)(1) requires that the complaint provide "a short and plain statement of the grounds for the court's jurisdiction[.]" When a complaint fails to include "an affirmative pleading of a jurisdictional basis, a federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded." Pinkley, 191 F.3d at 399 (citation omitted). However, if the court, viewing the allegations in the light most favorable to a plaintiff, finds insufficient allegations in the pleadings, the court will lack subject matter jurisdiction. Id.; see also Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012) (holding that when the alleged federal claim is "'so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy,'" then subject matter jurisdiction does not exist) (citation omitted).

Plaintiff indicates the court has jurisdiction over his claims pursuant to the diversity statute, 28 U.S.C. § 1332. [ECF No. 1 at 3]. Pursuant to 28 U.S.C. § 1332(a), the court may exercise jurisdiction if there is complete diversity of parties and an amount in controversy in excess of $75,000. 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 Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74 nn.13-16 (1978). Plaintiff's complaint fails to demonstrate complete diversity of parties, as Plaintiff alleges that he and at least one of the named defendants are citizens of South Carolina. Because Plaintiff has not shown that the court has diversity jurisdiction over his claims, and he has not alleged a claim arising under the Constitution or federal statutes, his complaint is subject to summary dismissal.

Here, Plaintiff cannot cure the deficiencies in his complaint by amending. Plaintiff's complaint concerns purely state law claims and he cannot establish federal court jurisdiction via diversity of citizenship as all his defendants are South Carolina residents. Accordingly, any amendment Plaintiff may make would be futile. III. Conclusion and Recommendation

See C/A No. 18-1567-CMC, ECF No. 27-1 at 1-5.

Additionally, there is no indication that the court could exercise federal question jurisdiction in this case. To the extent that he seeks relief pursuant to 42 U.S.C. § 1983, his claims fail as he does not make substantive allegations against state actors. With regard to the defendants who appear to be state actors, Plaintiff's complaint is also subject to summary dismissal because his claims and the relief he seeks deal with ongoing domestic disputes amongst Plaintiff, his ex-wife, his daughter, and his current wife, Mrs. Martin. See Younger v. Harris, 401 U.S. 37 (1971) (finding a federal court should not equitably interfere with state judicial proceedings except in the most narrow and extraordinary of circumstances); see also, Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2565 (2013) (internal citations omitted) ("'[D]omestic relations' is an area that has long been regarded as a virtually exclusive province of the States. Indeed, the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."). --------

For the foregoing reasons, the undersigned recommends that the court dismiss the complaint without prejudice to his right to bring these claims in an appropriate jurisdiction.

IT IS SO RECOMMENDED. July 26, 2018
Columbia, South Carolina

/s/


Shiva V. Hodges


United States Magistrate Judge

The parties are directed to note the important information in the attached

"Notice of Right to File Objections to Report and Recommendation."

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

901 Richland Street

Columbia, South Carolina 29201

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).