Opinion
C/A No. 8:18-2700-DCC-KFM
05-22-2019
Michael G. Capps, Plaintiff, v. Oconee County Sheriff's Department, Mike Crenshaw, Kevin Davis, Jeff Underwood, Bryan Long, Justin Pelfrey, Josh Labrecque, Oconee County Counsel, Edda Cammick, David Root, Defendants.
REPORT OF MAGISTRATE JUDGE
The plaintiff, proceeding pro se, bring this civil action alleging state law causes of action for slander and libel (docs. 1; 14). 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.
PROCEDURAL HISTORY
On October 2, 2018, the plaintiff filed this action alleging various state law causes of action against the defendants in the United States District Court for the Western District of North Carolina (doc. 1). On October 3, 2018, the Honorable Martin K. Reidinger, United States District Judge for the Western District of North Carolina, transferred the case to the United States District Court for the District of South Carolina (doc. 3). On October 9, 2018, the undersigned issued an R&R recommending that the plaintiff's complaint be dismissed as duplicative of C/A No. 18-1434 (doc. 10). The plaintiff filed objections to the R&R, arguing that this second case was not duplicative because "the new state charges I file in this action against defendants are wholly different from the federal violations in my original filing. And these are based on new evidence I only learned the other month." (doc. 14 at 2). Accordingly, on April 16, 2019, the Honorable Donald C. Coggins, Jr., United States District Judge, issued an order stating:
This case follows a previous case filed by the plaintiff in this district on May 25, 2018, Capps v. Oconee Cty. Sheriff's Office, et al., C/A No. 8:18-1434-DCC-KFM (D.S.C.) ("C/A No. 18-1434"), arising from some of the same underlying events and defendants. On February 12, 2019, the undersigned issued a Report and Recommendation ("R&R") in C/A No. 18-1434, recommending that the moving defendants' motion for summary judgment be granted, and that the plaintiff's motions for summary judgment be denied (C/A No. 18-1434, doc. 75). That R&R remains pending, as the plaintiff appealed the R&R to the Fourth Circuit Court of Appeals. See Capps v. Oconee Cty. Sheriff's Office, et al., C/A No. 19-1201 (4th Cir.).
Upon review of Plaintiff's objections to the Report and Recommendation, it appears Plaintiff only intends to bring state law claims of libel and slander in this action. If Plaintiff intends to bring any other claim in this action, he must inform the Court in writing within 14 days.(doc. 17). The plaintiff did not respond to Judge Coggins' order. Thereafter, on May 7, 2019, Judge Coggins issued an order declining to adopt the R&R and re-committing the instant matter to the undersigned to conduct further evaluation of the plaintiff's complaint in light of the clarification that he is seeking only state law claims for slander and libel (id).
BACKGROUND
In the instant action, the plaintiff seeks damages from the defendants arising from an incident that took place on January 15, 2017 (doc. 1 at 1). The plaintiff alleges that on that day he was taking pictures of the sunset when two women approached him and questioned him about the pictures he was taking (id.). He contends that the women indicated to him that he was scaring their children (id.). The Oconee County Sheriff's Department was then dispatched to the scene—with defendants Labrecque and Pelfrey responding (id. at 2). When the officers approached the plaintiff, he refused to give them his identification, asserting his Fourth Amendment right (id.). The plaintiff contends that he tried to walk away at that point, but the defendants unlawfully detained him (id. at 2-3). The plaintiff alleges that he requested a supervisor, and Sgt. Long later arrived on the scene (id. at 3). The plaintiff alleges that Long seized and searched his camera and that he was unlawfully handcuffed and placed into a squad car (id.). The plaintiff alleges that he was released approximately thirty minutes later, but that being forced to sit in the car in the handcuffs caused serious injuries to his wrists and hands (id.).
Following this incident, the plaintiff alleges he contacted several of the defendants requesting an investigation into the events on January 15, 2017, but nothing was done (id. at 5-6). He also contends that because he requested an investigation into the events of January 15, 2017, a libelous charge of criminal solicitation of a minor was brought against him (id. at 4). He contends that the "libelous false charge" also indicates that the plaintiff used a computer to solicit a minor (id.). For relief, the plaintiff seeks ten million dollars in damages, that his record be wiped clean, that he receive an apology from the defendants, and that James W. Logan, Jr. (defense counsel in C/A No. 18-1434) be reprimanded (id. at 6).
In a section entitled "Special Note," the plaintiff asserts that he maintains an apartment in Seneca, South Carolina, but alleges he lives in North Carolina because of threats made against him by the defendants (id. at 7). The plaintiff alleges that he was told that he would not be successful in the Oconee County State Court, so the plaintiff instead filed his action in federal court asserting diversity jurisdiction (id. at 6-7).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted," is "frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant the plaintiff'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).
"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.").
DISCUSSION
Subject Matter Jurisdiction
Liberally construed, the plaintiff asserts that the court has diversity jurisdiction over the instant action pursuant to 28 U.S.C. § 1332(a) (docs. 1; 14 at 2). In support of this assertion, the plaintiff alleges he is a citizen of North Carolina and that the defendants are citizens of South Carolina, and that he seeks damages in the amount of ten million dollars (docs. 1 at 6; 14 at 3). Further, in clarifying the difference between the instant matter and C/A No. 18-1434, the plaintiff indicates that he temporarily lives part-time in North Carolina, but acknowledges that he votes, maintains an apartment, and that all of his property is in South Carolina (docs. 1 at 7; 14 at 2). In light of the foregoing domicile admissions by the plaintiff, the undersigned recommends dismissing the instant action because the court lacks jurisdiction pursuant to 28 U.S.C. § 1332(a).
Diversity jurisdiction is conferred upon the Court when a suit is between citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). "With the exception of certain class actions, Section 1332 requires complete diversity among parties, meaning that the citizenship of every plaintiff must be different from the citizenship of every defendant." Central W. Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011) (footnote omitted). Citizenship for purposes of diversity jurisdiction "depends on the citizenship of the parties at the time suit is filed." Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003). "For purposes of diversity jurisdiction, residency is not sufficient to establish citizenship." Johnson v. Advance America, 549 F.3d 932, 937 n.2 (4th Cir. 2008) (citing Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998)). Rather, "[t]o be a citizen of a State, a person must be both a citizen of the United States and a domiciliary of that State." Id. (citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989)). "Domicile requires physical presence, coupled with an intent to make the State a home." Id. (internal citation omitted). As explained by the United States Supreme Court: "'Domicile' is not necessarily synonymous with 'residence,' and one can reside in one place but be domiciled in another. For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (internal citations omitted). Further, for an individual to effect a change of citizenship from one state to another, "there must be residence in the new domicile and an intention to remain there permanently or indefinitely." Webb v. Nolan, 484 F.2d 1049, 1051 (4th Cir. 1973). There is a presumption in favor of an original or former domicile as against an acquired one and proof of a change in domicile must be clear and convincing. Ness v. Dean Witter Reynolds, Inc., 677 F. Supp. 861, 864 (D.S.C. 1987) (citing Ferrara v. Ibach, 285 F. Supp. 1017, 1019 (D.S.C. 1968)). Further, "[t]he burden of persuasion for establishing diversity jurisdiction . . . remains on the party asserting it." Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010) (internal citations omitted).
Here, the Court finds that by his own allegations and statements, the plaintiff is domiciled in South Carolina for purposes of diversity jurisdiction. While the plaintiff's living arrangements at the time this suit was filed (and up to this day) are unusual, the court finds that the plaintiff's domicile has never changed from South Carolina to North Carolina, as the plaintiff has not manifested an intention to remain in North Carolina permanently or indefinitely. The evidence shows that the plaintiff, at the time suit was filed and up to this day, has maintained his domicile in Seneca, South Carolina, where he has a two bedroom apartment containing "all of [his] property" (doc. 14 at 2). He indicates that he spends five days each month in South Carolina and twenty-five in North Carolina (id.). There is no evidence that the plaintiff at the time the suit was filed intended to change his domicile to North Carolina (see id. (the plaintiff noting part-time residence in North Carolina)). Rather, the evidence shows that the plaintiff continues to vote in South Carolina, maintains his property and an apartment in South Carolina, and alleges he is only residing part-time in North Carolina because he fears retribution by the defendants.
As such, despite the plaintiff's assertion that he is a temporary resident of North Carolina, as noted, "residency is not sufficient to establish citizenship" for purposes of diversity jurisdiction. Advance America, 549 F.3d at 937 n.2. Thus, the evidence shows that while the plaintiff may reside part-time in North Carolina, his citizenship (and domicile) are in South Carolina. See Holyfield, 490 U.S. at 48 (holding that "one can reside in one place but be domiciled in another."); Jones v. Certusbank NA, 605 F. App'x 218, 219 (4th Cir. 2015) (mem.) (finding dismissal for lack of diversity jurisdiction appropriate even though "some facts weighed in favor of a finding [the plaintiff] was domiciled in North Carolina," including two vehicles registered and taxed in North Carolina because the totality of the circumstances permitted a finding that the plaintiff was domiciled in South Carolina when he filed suit). Courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Thus, for the foregoing reasons, the undersigned finds that the plaintiff is a citizen of South Carolina for purposes of diversity jurisdiction, and complete diversity therefore does not exist between the parties. As such, the undersigned recommends dismissing this case without prejudice. See Steel Co. v. Citizens for a Better Env't., 523 U.S. 83, 94 (1998) ("Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause" (internal citation omitted)).
RECOMMENDATION
The plaintiff cannot cure the subject matter jurisdiction defect in his complaint by mere amendment. Accordingly, it is recommended that the District Court dismiss this action without prejudice and without issuance and service of process. The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge May 22, 2019
Greenville, South Carolina
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
300 East Washington Street, Room 239
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).