United States District Court, M.D. North Carolina
JOHN D. CUMMINGS, Plaintiff,
NEVZETA RAHMATI, et al., Defendants.
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
PATRICK AULD, UNITED STATES MAGISTRATE JUDGE
case comes before the Court on Plaintiff's Application to
Proceed In Forma Pauperis (Docket Entry 1) in conjunction
with his pro se Complaint (Docket Entry 2). For the reasons
that follow, the Court will grant Plaintiff's instant
Application for the limited purpose of recommending dismissal
of this action for lack of subject matter jurisdiction.
federal in forma pauperis statute, first enacted in
1892 [and now codified at 28 U.S.C. § 1915], is intended
to guarantee that no citizen shall be denied access to the
courts solely because his poverty makes it impossible for him
to pay or secure the costs.” Nasim v. Warden, Md.
House of Corr., 64 F.3d 951, 953 (4th Cir. 1995) (en
banc) (internal quotation marks omitted). “Dispensing
with filing fees, however, [is] not without its problems. . .
. In particular, litigants suing in forma pauperis d[o] not
need to balance the prospects of successfully obtaining
relief against the administrative costs of bringing
suit.” Nagy v. FMC Butner, 376 F.3d 252, 255
(4th Cir. 2004).
address this concern, the in forma pauperis statute provides
that “the [C]ourt shall dismiss the case at any time if
the [C]ourt determines . . . the action . . . is
frivolous.” 28 U.S.C. § 1915(e)(2). “[A]
complaint, containing as it does both factual allegations and
legal conclusions, is frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). In assessing such
matters, the Court may “apply common sense.”
Nasim, 64 F.3d at 954; see also Nagy, 376
F.3d at 256-57 (“The word ‘frivolous' is
inherently elastic and not susceptible to categorical
definition. . . . The term's capaciousness directs lower
courts to conduct a flexible analysis, in light of the
totality of the circumstances, of all factors bearing upon
the frivolity of a claim.” (some internal quotation
Court may consider subject matter jurisdiction as part of its
frivolity review. Overstreet v. Colvin, 4:13-CV-261,
2014 WL 353684, at *3 (E.D. N.C. Jan. 30, 2014) (citing
Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999)
(holding that “[d]etermining the question of subject
matter jurisdiction at the outset of the litigation is often
the most efficient procedure”)).
“‘[F]ederal 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) (quoting Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978)). The party invoking
jurisdiction, here Plaintiff, bears the burden of
establishing subject matter jurisdiction. Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The
burden of proving subject matter jurisdiction . . . is on the
plaintiff, the party asserting jurisdiction.”).
“The complaint must affirmatively allege the grounds
for jurisdiction, ” Overstreet, 2014 WL
353684, at *3, and the Court must dismiss the action if it
determines that subject matter jurisdiction does not exist,
jurisdiction pursuant to “5.1.A Section 1983 42 U.S.C.,
25 C.F.R. 11.411 Criminal Trespass[, ] the Constitution of
the United States of America and it[s] rights privileges and
immunities[, and] the 14th Amendment Due Process Clause,
” Plaintiff initiated this action against Nevzeta
Rahmati, Habibollah Rahmati, NC Auto Dealer Inc., and Hook
and Go Towing (collectively, the “Defendants”).
(Docket Entry 2 at 1 (all-caps font omitted)). According to the
Complaint, Defendants, collectively and/or individually, used
an unauthorized GPS tracking device on Plaintiff's
vehicle, unlawfully trespassed upon property located in
Greensboro, North Carolina, illegally repossessed
Plaintiff's vehicle, and, through that repossession,
improperly converted Plaintiff's personal belongings
located in the vehicle. (Id. at 1-2.) The Complaint
further asserts that Defendants have refused to return
Plaintiff's vehicle and personal belongings.
(Id. at 2.) Finally, the Complaint alleges that
Defendants' acts violated Plaintiff's due process
rights, as well as his “civil rights privileges and
immunities of the Constitution of the United States of
America.” (Id. at 3 (all-caps font omitted).)
For relief, Plaintiff requests monetary damages.
(Id. at 2-3.)
courts “have original jurisdiction of all civil actions
arising under the Constitution[ and] laws . . . of the United
States.” 28 U.S.C. § 1331. Here, the Complaint asserts
federal jurisdiction under both 25 C.F.R. § 11.411 and
42 U.S.C. § 1983. (Docket Entry 2 at 1.) As an initial
matter, 25 C.F.R. § 11.411 constitutes a federal
regulation prohibiting trespass upon Indian reservations.
See United States v. King, No. 4:08-cr-8, 2008 WL
4710744, at *9 (D. Alaska Oct. 24, 2008) (explaining that 25
C.F.R. § 11.411 “describes the offense of criminal
trespass” and “applies to Indian
reservations”). The Complaint lacks any factual matter
to suggest that Defendants trespassed upon an Indian
reservation. (See Docket Entry 2 at 1-3.) Because
the Complaint fails to allege that Defendants trespassed onto
an Indian reservation, 25 C.F.R. § 11.411 cannot serve
as the basis for federal jurisdiction over this matter.
to the Complaint's remaining purported jurisdictional
basis, to bring a 42 U.S.C. § 1983 claim, Plaintiff must
“establish that [he was] deprived of a right secured by
the Constitution or laws of the United States, and that the
alleged deprivation was committed [by a person acting]
under color of state law.” American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)
(emphasis added). “A person acts under color of state
law only when exercising ‘power possessed by virtue of
state law and made possible only because the wrongdoer is
clothed with the authority of state law.'”
Bailey v. Prince George's Cty., 34 F.Supp.2d
1025, 1026 (D. Md. 1999) (quoting United States v.
Classic, 313 U.S. 299, 326 (1941)). Put another way,
“[t]he person charged [under Section 1983] must either
be a state actor or have a sufficiently close relationship
with state actors such that a court would conclude that the
non-state actor is engaged in the state's actions.”
DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir.
1999); see also Bailey, 34 F.Supp.2d at 1026
(“The alleged infringement of federal rights must be
fairly attributable to the state.” (citing
Rendell-Baker v. Kohn, 457 U.S. 830 (1982))).
“In general, private companies and corporations do not
act under color of state law.” Ellis v. Santander
Consumer USA, Civ. Action No. 13-2099, 2013 WL 3753624,
at *5 (W.D. Tenn. July 15, 2013).
Plaintiff asserts claims against two private companies, Hook
and Go Towing and NC Auto Dealer Inc., and two private
persons, Nevzeta Rahmati and Habibollah Rahmati, who serve as
officers of NC Auto Dealer Inc. (Docket Entry 2 at 1.)
Importantly, the Complaint contains no factual matter
suggesting that any defendant (1) works as a state official,
(2) acted in concert with a state official, or (3) violated
Plaintiff's rights under compulsion of a state official.
(See id. at 1-3.) Accordingly, Defendants'
alleged conduct qualifies as private, rather than state,
action. See DeBauche, 191 F.3d at 507 (explaining
that “private activity will generally not be deemed
‘state action' unless the state has so dominated
such activity as to convert it into state action”).
Section 1983 cannot therefore provide the grounds for federal
jurisdiction over this matter. See American Mfrs. Mut.
Ins. Co., 526 U.S. at 50 (holding that Section
1983's under-color-of-state-law requirement
“excludes from its reach merely private conduct, no
matter how discriminatory or wrongful” (internal
quotation marks omitted)); see also Ellis, 2013 WL
3753624, at *5 (explaining that Section 1983 claims grounded
upon the repossession of the plaintiff's vehicle failed
as a matter of law because “[t]here are no allegations
whatsoever in the complaint that reasonably suggest that [the
defendant] engaged in conduct that could be construed as
final matter, the Complaint appears to assert state-law
claims of trespass to real property, fraud, and conversion
regarding Defendants' alleged repossession of
Plaintiff's vehicle. (See Docket Entry 2 at
1-2.) However, “Section 1983 provides no remedy for
common law torts.” Bailey, 34 F.Supp.2d at
1027 (citing Street v. Surdyka, 492 F.2d 368, 371
(4th Cir. 1974)).
these circumstances, the Complaint fails to establish subject
matter jurisdiction and the obviousness of this ...