United States District Court, E.D. North Carolina, Western Division
ORDER AND MEMORANDUM AND RECOMMENDATION
E. GATES UNITED STATES MAGISTRATE JUDGE.
pro se case is before the court on the motion to proceed
in forma pauperis under 28 U.S.C. § 1915(a)(1)
(D.E. 1) by plaintiff Fahad Kahn ("plaintiff') and
for a frivolity review pursuant to 28 U.S.C. §
1915(e)(2)(B). The motion to proceed in forma
pauperis was referred to the undersigned magistrate
judge for determination pursuant to 28 U.S.C. §
636(b)(1)(A) and the frivolity review for issuance of a
memorandum and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B). See D.E. 4. As set out below, the
motion to proceed in forma pauperis will be allowed;
and it will be recommended that plaintiffs claims be
dismissed for lack of subject matter jurisdiction.
ON IN FORMA PA UPERIS MOTION
court finds that plaintiff has adequately demonstrated his
inability to prepay the required court costs. His motion to
proceed in forma pauperis is therefore ALLOWED.
AND RECOMMENDATION ON FRIVOLITY REVIEW
action, commenced on 13 June 2018, plaintiff alleges in a
preprinted complaint form medical malpractice arising from
his visit to the emergency room at the Raleigh campus of
WakeMed ("defendant") on an unspecified date after
his water bottle was tampered with at a grocery
store. Compl. (D.E. 1-1)2. He alleges that the
doctor and nurse he saw in the emergency room lied about his
drug screen. Id. Specifically, he contends that the
nurse initially informed him that his drug screen was clear,
but when plaintiff advised that he had used marijuana
recreationally several days earlier, the nurse came back a
few minutes later and said that the drug screen was positive
for marijuana. Id. Plaintiff alleges that he
possesses video evidence of the nurse admitting to lying
about his drug screen and refusing to administer a blood
complaint, plaintiff alleges that jurisdiction is based on
"Medical Malpractice" (id.), although in
the civil cover sheet he indicates the jurisdictional basis
is federal question jurisdiction (D.E. 1-2 §
II.3). He seeks $300, 000.00 in compensatory
damages for "loss of enjoyment of life, emotional
distress, [and] humiliation," and $1.35 billion in
punitive damages. Id. at 2.
APPLICABLE LEGAL STANDARDS FOR FRIVOLITY
allowing a party to proceed in forma pauperis, as
here, the court must conduct a frivolity review of the case
pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must
dismiss the complaint if it determines that the action is
frivolous or malicious, 28 U.S.C. § l9l5(e)(2)(B)(i);
fails to state a claim upon which relief can be granted,
id. § l9l5(e)(2)(B)(ii); or seeks monetary
relief from an immune defendant, id. §
1915(e)(2)(B)(ii). See Denton v. Hernandez, 504 U.S.
25, 27 (1992) (standard for frivolity).
Rule 8 of the Federal Rules of Civil Procedure, a pleading
that states a claim for relief must contain "a short and
plain statement of the grounds for the court's
jurisdiction ... [and] a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the
complaint must '"state[ ] a plausible claim for
relief that 'permit[s] the court to infer more than the
mere possibility of misconduct' based upon 'its
judicial experience and common sense.'" Coleman
v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.
2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009)). Likewise, a complaint is insufficient if it offers
merely "labels and conclusions," "a formulaic
recitation of the elements of a cause of action," or
"naked assertion[s]" devoid of "further
factual enhancement." Iqbal, 556 U.S. at 678
(quoting Bell Ail. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotation marks omitted)).
evaluating frivolity specifically, a pro se plaintiffs
pleadings are held to "less stringent standards"
than those drafted by attorneys. White v. White, 886
F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is
not required to accept a pro se plaintiffs contentions as
true. Denton, 504 U.S. at 32. Instead, 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 v.
Williams, 490 U.S. 319, 327 (1989). Provided that a
plaintiffs claims are not clearly baseless, the court must
weigh the factual allegations in plaintiffs favor in its
frivolity analysis. Denton, 504 U.S. at 32. The
court must read the complaint carefully to determine if a
plaintiff has alleged specific facts sufficient to support
the claims asserted. White, 886 F.2d at 724.
may consider subject matter jurisdiction as part of the
frivolity review. See Lovern v. Edwards, 190 F.3d
648, 654 (4th Cir. 1999) (holding that "[determining the
question of subject matter jurisdiction at the outset of the
litigation is often the most efficient procedure");
Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL
397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of
diversity jurisdiction during frivolity review as a basis for
dismissal). "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. Lehigh Min. & Mfg. Co. v. Kelly, 160
U.S. 327, 336 (1895). The burden of establishing subject
matter jurisdiction rests on the party invoking jurisdiction,
here plaintiff. 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. Bowman, 388
F.2d at 760. If in a frivolity review the court determines
that it lacks subject matter jurisdiction, it must dismiss
the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
More generally, "[i]f the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action." Fed.R.Civ.P. 12(h)(3).
basis for subject matter jurisdiction, so-called federal
question jurisdiction, is that a claim arises under the
Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. Another basis is diversity of citizenship
or so-called diversity jurisdiction, which requires that the
citizenship of each plaintiff be different from that of each
defendant. Id. § 1332; see Owen Equip.
& Erection Co. v. Kroger,437 U.S. 365, 372-74
(1978); Turner v. Cooper, No. 2:13-CV-02017-JMC,
2013 WL 5587856, at *3 (D.S.C. 16 Aug. 2013) ("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."), rep. & recomm. adopted, 2013
WL 5587856, at *l (10 Oct. 2013). For purposes of diversity
jurisdiction, an individual is deemed to be a citizen of the
state in which he is domiciled. Axel Johnson, Inc. v.
Carroll Carolina Oil Co.,145 F.3d 660, 663 (4th Cir.
1998) ("As the Supreme Court has consistently held,
however, state citizenship for purposes of diversity
jurisdiction depends not on residence, but on national
citizenship and domicile, . . . and the existence of such
citizenship cannot be inferred from allegations of mere
residence, standing alone."); Comm V v.
Nubar,185 F.2d 584, 587 (4th Cir. 1950)
("'Residence' means living in a particular
locality, but 'domicile' means living in that
locality with ...