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Khan v. Wakemed

United States District Court, E.D. North Carolina, Western Division

February 13, 2019

FAHAD KHAN, Plaintiff,
v.
WAKEMED, Defendant.

          ORDER AND MEMORANDUM AND RECOMMENDATION

          JAMES E. GATES UNITED STATES MAGISTRATE JUDGE.

         This 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.

         ORDER ON IN FORMA PA UPERIS MOTION

         The 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.

         MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

         I. BACKGROUND

         In this 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.[1] 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 test. Id.

         In his 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).[2] 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.

         II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW

         After 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).

         Under 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)).

         In 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.

         A court 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).

         One 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 ...


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