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Dolin v. Kindred

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

October 18, 2019

CHRISTOPHER DOLIN, Plaintiff,
v.
JORDAN KINDRED, et al., Defendants.

          ORDER AND MEMORANDUM AND RECOMMENDATION

          Robert B. Jones, Jr. United States Magistrate Judge

         This 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.

         I. STANDARD OF REVIEW

         Pursuant 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.

         In 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).

         In 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).

         II. DISCUSSION

         Dolin, 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.

         An 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).

         In the 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 that

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 jurisdiction.

         III. CONCLUSION

         For the reasons stated herein, Plaintiffs application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that ...


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