United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM & RECOMMENDATION
Kimberly A. Swank, United States Magistrate Judge.
pro se case is before the court for frivolity review pursuant
to 28 U.S.C. § 1915(e)(2)(B), the matter having been
referred to the undersigned by the Honorable James C. Dever
III, United States District Judge. For the reasons set forth
below, it is recommended that Plaintiff's complaint be
seeks to sue Defendants for medical malpractice for personal
injuries allegedly sustained as a result of Defendant
Hollingsworth changing his insulin prescription, improperly
charging him for visits and treatments he did not receive,
“misus[ing] [his] name” on medications, and
prescribing him incorrect medications. (Aug. 28, 2018 Prop.
Compl. [DE #1-1] at 2-3.)
March 15, 2019, the court allowed Plaintiff's application
to proceed without prepayment of filing fees and ordered
Plaintiff to particularize his complaint by filing “a
revised complaint containing facts demonstrating the
existence of federal subject matter jurisdiction, if any,
over his claims.” (Mar. 15, 2019, Order [DE #5] at 5).
In response to the court's order, Plaintiff has submitted
over 200 pages of documents, together with a letter stating,
in part: “These are the important details that you
requested I send you pertaining to [my] case . . . .”
(Letter dated April 2, 2019 & Attachments [DE #6].)
Standard for Frivolity Review
the court's prior determination that Plaintiff is
entitled to in forma pauperis status, the court is
required to dismiss all or part of an action found to be
frivolous or malicious, which fails to state a claim on which
relief can be granted, or which seeks money damages from a
defendant immune from such recovery. 28 U.S.C. §
1915(e)(2); Michau v. Charleston County, 434 F.3d
725, 728 (4th Cir. 2006). A case is frivolous if it lacks an
arguable basis in either law or fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Pro se complaints
are entitled to a more liberal treatment than pleadings
drafted by lawyers. See White v. White, 886 F.2d
721, 722- 23 (4th Cir. 1989). However, the court is not
required to accept a pro se plaintiff's contentions as
true. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
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, 490 U.S. at 327.
of the Federal Rules of Civil Procedure requires a complaint
to give a “short plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P.
8. The statement must give a defendant fair notice of what
the claim is and the grounds upon which it rests. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“A plaintiff must offer more detail . . . than the bald
statement that he has a valid claim of some type against the
defendant.” Trulock v. Freeh, 275 F.3d 391,
405 (4th Cir. 2001); see also White, 886 F.2d at 723
(affirming district court's dismissal of plaintiff's
suit as frivolous where plaintiff's complaint
“failed to contain any factual allegations tending to
support his bare assertion”). While the court must read
the complaint carefully to determine if the plaintiff has
alleged facts sufficient to support his claims,
White, 886 F.2d at 724, the court is not required to
act as the pro se plaintiff's advocate or to parse
through volumes of documents or discursive arguments in an
attempt to discern the plaintiff's unexpressed intent,
Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir.
review of Plaintiff's proposed complaint, as supplemented
by his recent filing, continues to raise the threshold issue
of subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.”). “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. See id.
the court ordered Plaintiff to particularize his complaint to
demonstrate that this court has federal subject matter
jurisdiction over his claims. (Mar. 15, 2019, Order at 4.)
Subject matter jurisdiction based on diversity of citizenship
between the parties requires (i) that each plaintiff be a
citizen of a state different than that of each defendant; and
(ii) that the amount in controversy exceed $75, 000.
See 28 U.S.C. § 1332(a); Exxon Mobil Corp.
v. Allapattah Servs., 545 U.S. 546, 552-53 (2005)
(explaining diversity jurisdiction). For diversity
jurisdiction, residency alone is insufficient to establish
citizenship. Scott v. Cricket Commc'ns, LLC, 865
F.3d 189, 195 (4th Cir. 2017) (quoting Johnson v. Advance
America, 549 F.3d 932, 937 n.2 (4th Cir. 2008)).
“The burden of establishing subject matter jurisdiction
rests with the plaintiff as ‘the party asserting
jurisdiction.'” AGI Assocs., LLC v. City of
Hickory, N.C. , 773 F.3d 576, 578 (4th Cir. 2014)
(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th
response to the court's order to provide additional
factual information demonstrating the existence of subject
matter jurisdiction, Plaintiff' has submitted 200 pages
of documents, including medical records, medication lists,
his birth certificate, dates Plaintiff was seen by Defendant
Hollingsworth, and correspondence with the North Carolina
Medical Board. These documents provide no information
regarding the citizenship of Plaintiff and Defendants. In his
proposed complaint, Plaintiff lists North Carolina as his
state of residence as well as the state of residence for
Defendants Hollingsworth and Southeastern Medical Clinic.
(Prop. Compl. at 1.) Plaintiff has provided no further
information from which the court may infer the existence of
having reviewed all of Plaintiff's filings, the
undersigned discerns no federal constitutional provision or
statute that would provide Plaintiff a cause of action over
which this court has jurisdiction pursuant to 28 U.S.C.
§ 1331. Nor does Plaintiff refer to any source of
federal question jurisdiction in any of his filings.
Plaintiff's medical malpractice dispute is rather
“a claim based on state law, ” to be heard in the
state courts absent diversity of citizenship jurisdiction.
Khan v. WakeMed, No. 5:18-CV-276-D, 2019 WL 1053645,
at *3 (E.D. N.C. Feb. 13, 2019), mem. &
recommendation adopted, 2019 WL 1052000 (Mar. 5, 2019)
(dismissing plaintiff's ...