United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
B. Jones, Jr. United States Magistrate Judge.
matter is before the court for a memorandum and
recommendation on Plaintiff's application to proceed
in forma pauperis under 28 U.S.C. § 1915 and
for frivolity review of the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B). [DE-1]. Plaintiff has demonstrated
appropriate evidence of inability to pay the required court
costs, but the complaint fails to state a claim over which
the court has subject matter jurisdiction. Accordingly, it is
recommended that the application to proceed in forma
pauperis be denied and the complaint be dismissed.
STANDARD OF REVIEW
to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss
the complaint if it is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks money
damages from a defendant immune from such recovery. 28 U.S.C.
§ 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40
F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted
predecessor statute 28 U.S.C. § 1915(d) "to prevent
abuse of the judicial system by parties who bear none of the
ordinary financial disincentives to filing meritless
claims"). A case is frivolous if it lacks an arguable
basis in either law or fact. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989); McLean v. United
States, 566 F.3d 391, 399 (4th Cir. 2009)
("Examples of frivolous claims include those whose
factual allegations are 'so nutty, ' 'delusional,
' or 'wholly fanciful' as to be simply
'unbelievable.'"). A claim lacks an arguable
basis in law when it is "based on an indisputably
meritless legal theory." Neitzke, 490 U.S. at
327. A claim lacks an arguable basis in fact when it
describes "fantastic or delusional scenarios."
Id. at 327-28.
determining whether a complaint is frivolous, "a court
is not bound, as it usually is when making a determination
based solely on the pleadings, to accept without question the
truth of the Plaintiff's allegations." Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may
find a complaint factually frivolous "when the facts
alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable
facts available to contradict them." Id.
"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." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d
252, 256-57 (4th Cir. 2004) (some internal quotation marks
omitted). In making its frivolity determination, the court
may "apply common sense." Nasim v. Warden., Md.
House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
order to state a claim on which relief may be granted,
"a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "Factual
allegations must be enough to raise a right to relief above
the speculative level . . . .'" Twombly,
550 U.S. at 555. While a complaint need not contain detailed
factual allegations, the plaintiff must allege more than
labels and conclusions. Id. In the present case,
Plaintiff is proceeding pro se and pleadings drafted
by a. pro se litigant are held to a less stringent
standard than those drafted by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). The court is charged
with liberally construing a pleading filed by a pro
se litigant to allow for the development of a
potentially meritorious claim. See id; Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Noble v.
Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However,
the principles requiring generous construction of pro
se complaints are not without limits; the district
courts are not required "to conjure up questions never
squarely presented to them." Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
appears to allege that Defendants-who include among others
the House of Representatives, the Congress of the United
States of America, Washington, D.C., the Miami Police
Department, the state of Florida, the city of Miami, and
several individuals, including United States Congresswoman
Ileana Ros-Lehtinen, some of whom were named in a prior suit
filed by Plaintiff- falsely accused him of sexual,
drug-related, and terrorism-related misconduct, resulting in
both federal and state criminal investigations of Plaintiff.
[DE-1]. Plaintiff alleges these accusations caused him to
lose custody of his children, to be fired from his job, and
to be expelled from law school and graduate
school. Id. Plaintiff generally alleges
claims for civil rights violations, defamation, and personal
damages. Id. at 1. In a later filing, Plaintiff
submitted evidence with respect to his criminal record,
employment history, and education. [DE-3]. Additionally,
Plaintiff later submitted evidence from the "Bureau of
Labor Statistic [sic] and Hand book [sic] of Professions And
PAY. Political Scientists, Master management and law School
never completed by Federal Prosecutions, " seemingly in
order to prove that the 2016 median pay for political
scientists was $115, 000 per year. [DE-4-1 ].
carefully reviewed Plaintiff's allegations, the court
determines that Plaintiff's complaint is illogical,
convoluted, and lacks an arguable basis in fact.
Neitzke, 490 U.S. at 325. Based on what the court
can surmise from Plaintiff's complaint, Plaintiff fails
to demonstrate how this court has subject matter
jurisdiction. Federal courts have limited subject matter
jurisdiction and "there is no presumption that the court
has jurisdiction." Pinkley, Inc. v. City of
Frederick, 191 F.3d 394, 399 (4th Cir. 1999). The
district court has (1) federal question jurisdiction over
"all civil actions arising under the Constitution, laws,
or treaties of the United States, " 28 U.S.C. §
1331, and (2) diversity jurisdiction "where the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between ... citizens
of different States . . ., " 28 U.S.C. §
1332(a)(1). "[T]he facts providing the court
jurisdiction must be affirmatively alleged in the
complaint." Pinkley, Inc., 191 F.3d at 399;
New River Lumber Co. v. Graff, 889 F.2d 1084 (4th
Cir. 1989) ("To establish Section 1332 jurisdiction, a
moving party must affirmatively allege ... the essential
elements of diversity on the fact of his complaint.").
has failed to plead any federal question claims against these
Defendants. Plaintiff has likewise failed to allege any facts
establishing diversity jurisdiction under 28 U.S.C. §
1332 over the state law defamation claims. "In order for
the court to have diversity jurisdiction under 28 U.S.C.
§ 1332, the matter in controversy must exceed the sum or
value of $75, 000 and the action must be between
'citizens of different States.'" Rose Acre
Farms, Inc. v. N.C. Dep't of Env't & Nat.
Res., 131 F.Supp.3d 496, 500-01 (E.D. N.C. 2015)
(quoting 28 U.S.C. § 1332(a)(1)), appeal
dismissed, No. 15-2003 (4th Cir. Sept. 17, 2015).
Plaintiff's complaint contains no allegations of the
citizenship of Defendants, but does list addresses indicating
Plaintiff resides in North Carolina and Defendant Miranda
resides in North Carolina, with the other Defendants residing
outside of North Carolina. Plaintiff has failed to establish
complete diversity, because Plaintiff is a citizen of the
same state as at least one of the Defendants. See Sampson
v. Leonard, No. 4:10-CV-121-D, 2011 WL 129634, at *1
(E.D. N.C. Jan. 12, 2011) ("Section 1332 requires
'complete diversity such that the state of citizenship of
each plaintiff must be different from that of each
defendant.'") (quoting Athena Auto., Inc. v.
DiGregorio, 166 F.3d 288, 290 (4th Cir. 1999)).
Accordingly, Plaintiff has failed to plead facts that would
support exercise of the court's diversity jurisdiction
under 28 U.S.C. § 1332.
reasons stated herein, it is RECOMMENDED that the case be
dismissed for lack of subject matter jurisdiction.
DIRECTED that a copy of this Memorandum and Recommendation be
served on Plaintiff. You shall have until November
27, 2017 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)(1); 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.
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 will bar you from appealing to the Court
of Appeals from an order or judgment ...