United States District Court, E.D. North Carolina, Western Division
ORDER AND MEMORANDUM & 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 Quancidine Hinson-Gribble
("plaintiff') and for a frivolity review pursuant to
28 U.S.C. § 1915(e)(2)(B). These matters were referred
to the undersigned magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), respectively. See D.E.
dated 30 Jan. 2019. As set out below, the motion to proceed
in forma pauperis will be allowed, and it will be
recommended that plaintiff's claims be dismissed for lack
of subject matter jurisdiction.
ON IN FORMA PAUPERIS MOTION
court finds that plaintiff has adequately demonstrated her
inability to prepay the required court costs. Her motion to
proceed in forma pauperis is therefore ALLOWED.
AND RECOMMENDATION ON FRIVOLITY REVIEW
commenced this action on 11 January 2019. Her proposed
complaint (D.E. 1-1) is on a preprinted complaint form, to
which are attached a "Statement of the Case"
("Statement") (D.E. 1-2) and ten exhibits (D.E. 1-3
alleges misconduct by defendants attorney Michael A. DeMayo
("DeMayo") and the Law Offices of Michael A. DeMayo
("DeMayo Law") (collectively
"defendants") arising from DeMayo's
representation of plaintiff with respect to a car accident on
20 January 2016. Compl. § III at p. 4; Stmt. 1-2.
Specifically, plaintiff contends that DeMayo promised to file
a lawsuit on plaintiffs behalf and never did, breaching a
contract between them. Compl. § III at pp. 4-5; Stmt.
1-2. As a result, plaintiff had to negotiate a settlement on
her own. Id. Plaintiff asserts claims against both
defendants for breach of contract and fraudulent
misrepresentation. Compl. §§ II.C, III at p. 5;
complaint form plaintiff used is entitled as one for cases
based on diversity jurisdiction. Compl. 1 ("COMPLAINT
FOR A CIVIL CASE ALLEGING BREACH OF CONTRACT (28 U.S.C.
§ 1332; Diversity of Citizenship)"); see also
Id. § II (explaining diversity jurisdiction). She
alleges that she and DeMayo are citizens of North Carolina,
id. § II.A.1, B.1, and that DeMayo Law is
incorporated under the laws of the state of North Carolina
and has a principal place of business in North Carolina,
id. § II.B.2. She seeks $3 million in damages.
Id. § II.C.
APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
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. § 1915(e)(2)(B)(i);
fails to state a claim upon which relief can be granted,
id. § 1915(e)(2)(B)(ii); or seeks monetary
relief from an immune defendant, id. §
1915(e)(2)(B)(ii). 28 U.S.C. § 1915(e)(2)(B); see
Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard
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 Atl. 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 ...