United States District Court, E.D. North Carolina, Western Division
ORDER AND MEMORANDUM AND RECOMMENDATION
B. Jones, Jr. United States Magistrate Judge
matter is before the court on Plaintiffs application to
proceed in forma pauperis [DE-1] and for frivolity
review of the complaint pursuant to 28 U.S.C. §
1915(e)(2)(B). Plaintiff has demonstrated appropriate
evidence of inability to pay the required court costs, and
the application to proceed in forma pauperis is
allowed. However, it is recommended that the complaint be
dismissed for lack of jurisdiction.
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 Plaintiffs 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
Corr., 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.
Bamett, 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).
a resident of Chester, Chesterfield County, Virginia brings
this action against several defendants who are alleged to be
residents of various states including Virginia. Compl.
[DE-1-1] at 1-2, 6-8. Dolin alleges a single claim for loss
of consortium, invokes the court's diversity
jurisdiction, and seeks $10, 741, 000 in compensatory and
punitive damages, which is comprised of $57, 000 from each
Defendant for compensatory damages and $10, 000, 000 in
punitive damages. Id. at 3-5.
action lies within the federal district court's 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). Complete diversity
among the parties is required, which means that no defendant
can have the same citizenship as any plaintiff. Wisconsin
Dep't of Corrs. v. Schacht, 524 U.S. 381, 388
(1998); Hawkins v. i-TV Digitalis Tavkozlesi zrt,
935 F.3d 211, 222 (4th Cir. 2019). The plaintiff is required
to affirmatively allege facts demonstrating the court's
jurisdiction in the complaint. Pinkley, Inc. v. City of
Frederick, 191 F.3d 394, 399 (4th Cir. 1999).
present case, Dolin's complaint states that he was a
citizen of North Carolina when the events that form the basis
of his claim occurred but, before filing the complaint, moved
to Virginia, where he now resides, to be with his family.
Compl. [DE-1-1] at 1, 4. The court has previously explained
For purposes of diversity jurisdiction, residency is not
sufficient to establish citizenship. To be a citizen of a
State, a person must be both a citizen of the United States
and a domiciliary of that State. Domicile requires physical
presence, coupled with an intent to make the State a home.
[T]o effect a change of citizenship from one state to another
there must be residence in the new domicile and an
intention to remain there permanently or indefinitely.
Brissett v. Wells Fargo Bank, N.A. for Certificate
Holders of Carrington Mortg. Loan Tr., Series
2007-Frel, No. 4:17-CV-114-FL, 2017 WL 6368667, at
*2 (E.D. N.C. Dec. 13, 2017) (quoting Johnson v. Advance
Am., 549 F.3d 932, 937 (4th Cir. 2008)). The complaint
is devoid of any facts that would indicate Dolin's move
to Virginia is not permanent such that he might still be
considered a citizen of North Carolina. Therefore, Dolin was
a citizen of Virginia when he initiated this action.
"The citizenship of the parties at the time of
commencement of the action determines whether the requisite
diversity exists." Rowland v. Patterson, 882
F.2d 97, 98 (4th Cir. 1989) (citations omitted). Dolin
alleges that Defendant Jordan Kindred is a citizen of
Virginia. Compl. [DE-1-1] at 3. Therefore, the allegations of
the complaint fail to demonstrate complete diversity because
the plaintiff and a defendant are citizens of the same state.
Furthermore, Plaintiffs complaint alleges only a state law
claim for loss of consortium, and there is no basis on the
face of the complaint for federal question jurisdiction.
Accordingly, it is recommended that Plaintiffs complaint be
dismissed without prejudice for lack of subject matter
reasons stated herein, Plaintiffs application to proceed
in forma pauperis is ALLOWED, and it is RECOMMENDED