GWALTNEY v. APPEAL CLERK - LEVEL 2 BOARD OF REVIEW N.C. DEPARTMENT OF COMMERCE
Filing
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MEMORANDUM OPINION, ORDER, AND RECOMMENDATION, signed by MAG/JUDGE L. PATRICK AULD on 3/9/2016. ORDERED that Plaintiff's Application to Proceed In Forma Pauperis (Docket Entry 1 ) is GRANTED for the limited purpose of considering this recommendation of dismissal. RECOMMENDED that this action be dismissed for lack of subject matter jurisdiction. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICHARD A. GWALTNEY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NC DEPARTMENT OF COMMERCE,
DIVISION OF EMPLOYMENT
SECURITY
Defendant.
1:16CV150
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application to
Proceed In Forma Pauperis (Docket Entry 1) in conjunction with his
pro
se
Complaint
Plaintiff’s
(Docket
instant
Entry
Application
2).
for
The
the
Court
will
limited
grant
purpose
of
recommending dismissal for lack of subject matter jurisdiction.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts solely because
his poverty makes it impossible for him to pay or secure the
costs.”
Cir.
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th
1995)
(en
banc)
(internal
“Dispensing
with
filing
fees,
quotation
however,
[is]
marks
not
omitted).
without
its
problems. . . . In particular, litigants suing in forma pauperis
d[o] not need to balance the prospects of successfully obtaining
relief against the administrative costs of bringing suit.” Nagy v.
FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004).
To
address
this
concern,
the
in
forma
pauperis
statute
provides, inter alia, that “the court shall dismiss the case at any
time if the court determines . . . the action . . . is frivolous.”
28 U.S.C. § 1915(e)(2). “[A] complaint, containing as it does both
factual allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact.”
Neitzke v.
Williams, 490 U.S. 319, 325 (1989). In assessing such matters, the
Court may “apply common sense.”
Nasim, 64 F.3d at 954; see also
Nagy, 376 F.3d at 256–57 (“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.” (some internal
quotation marks omitted)).
The Court may consider subject matter jurisdiction as part of
the frivolity review.
Overstreet v. Colvin, No. 4:13-CV-261, 2014
WL 353684, at *3 (E.D.N.C. Jan. 30, 2014) (unpublished) (citing
Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (observing
that, “[d]etermining the question of subject matter jurisdiction at
the
outset
procedure”)).
of
the
litigation
“‘[F]ederal
is
courts
often
are
the
most
courts
of
efficient
limited
jurisdiction,’ constrained to exercise only the authority conferred
2
by Article III of the Constitution and affirmatively granted by
federal statute.”
In re Bulldog Trucking, Inc., 147 F.3d 347, 352
(4th Cir. 1998) (quoting Owen Equip. & Erection Co. v. Kroger, 437
U.S. 365, 374 (1978)).
The party invoking jurisdiction bears the
burden of establishing subject matter jurisdiction. 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,” Overstreet, 2014 WL 353684, at *3, and
the Court must dismiss the action if it determines that subject
matter jurisdiction does not exist, Fed. R. Civ. P. 12(h)(3).
ANALYSIS
The Complaint alleges that Plaintiff resides in Kannapolis,
North
Carolina,
Carolina.
and
Defendant
is
(Docket Entry 2 at 1.)1
located
in
Raleigh,
North
Because Plaintiff and Defendant
are both residents of North Carolina, subject matter jurisdiction
cannot rest on diversity.
See 28 U.S.C. § 1332(a); see also Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005)
(“[T]he presence in the action of a single plaintiff from the same
State as a single defendant deprives the district court of original
diversity jurisdiction over the entire action.”); Sanderlin v.
1
The Complaint identifies Defendant variously as “Appeal
Clerk - Level 2 Board of Review NC Department of Commerce” and “NC
Department of Commerce, Division of Employment Security.” (Docket
Entry 2 at 1.)
3
Hutchens,
Senter
&
Britton,
(W.D.N.C.
2011)
diversity
requirement.
Hutchens,
Senter &
(“Plaintiffs
P.A.,
have
783
not
Specifically
Britton,
P.A.
F.
Supp.
satisfied
Plaintiffs
are both
2d
the
798,
801
complete
and Defendant
citizens
of North
Carolina.”).
Moreover, Plaintiff’s Complaint does not assert any claims
under the United States Constitution, federal law, or federal
treaties, as required for federal question jurisdiction, 28 U.S.C.
§ 1331. Instead, the Complaint attempts to challenge the denial of
Plaintiff’s claim, and dismissal of his subsequent appeal, for
unemployment benefits.
(See Docket Entry 2 at 2 (“The Decision of
N.C. Commerce, M. Bass w[as] not accurate.
appeal notification on 02.15.15, timely.
[Plaintiff] filed
[Plaintiff] was denied
benefits for unemployment on the wrong facts presented by Barefoot
Oil of Concord Lawyer[s].”); see also Docket Entry 2-1 at 1-2
(“Appeals Decision” in which “M. Bass, Appeals Referee,” concluded
that Plaintiff did not timely appeal the “Adjudicator[’s] . . .
holding
.
.
.
[that
Plaintiff
unemployment benefits”)).2
was]
disqualified
to
receive
To the extent Plaintiff requests that
2
The Complaint alleges jurisdiction under the “US Fair Labor
Act.” (Docket Entry 2 at 1.) Plaintiff thus appears to rely on
the Fair Labor Standards Act of 1938, codified as amended at 29
U.S.C. §§ 201-219 (the “FLSA”), for jurisdiction. The Complaint,
however, does not assert a FLSA claim and provides no factual
details or allegations to support a FLSA claim. (See Docket Entry
2 at 1-4.) In particular, Plaintiff does not allege that he ever
worked for Defendant or that Defendant violated any of the FLSA’s
provisions. (See id.) Because the Complaint fails to allege a
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the Court review the merits of the decision denying his claim for
unemployment benefits and/or his subsequent appeal of that denial,
the Court lacks subject matter jurisdiction over those requests
under the Rooker-Feldman doctrine.
See D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462, 482–88 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413, 415–16 (1923); see also Rodriguez v. Doe, 549 F.
App’x 141, 144 (4th Cir. 2013) (explaining that the Rooker-Feldman
doctrine bars lower federal courts from reviewing a state appellate
court decision affirming the denial of a plaintiff’s unemployment
benefits); Mitchell v. North Carolina Div. of Emp’t Sec., 76 F.
Supp. 3d 620, 625 (E.D.N.C. 2014) (holding that, “[t]o the extent
that [the plaintiff] asks this court to review the merits of the
decision denying his request for unemployment benefits compensation
and
to
award
subject-matter
Plaintiff
must
him
unemployment
jurisdiction
appeal
the
over
benefits,
such
decision
a
the
court
request”).
denying
his
lacks
Instead,
request
for
unemployment benefits to the North Carolina Superior Court, see
N.C. Gen. Stat. § 96–15(h), (i), and the decision dismissing his
appeal to the Appeals Clerk, Division of Employment Security, see
(Docket Entry 2-1 at 2 (notifying Plaintiff that he may appeal the
Appeals Decision to the “Appeals Clerk[,] Division of Employment
Security”)).
violation of federal law, it does not confer federal question
jurisdiction upon this Court.
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CONCLUSION
The Complaint fails to establish subject matter jurisdiction
and the obviousness of this defect renders this action legally
frivolous in this Court.3
IT
IS
THEREFORE
ORDERED
that
Plaintiff’s
Application
to
Proceed In Forma Pauperis (Docket Entry 1) is GRANTED for the
limited purpose of considering this recommendation of dismissal.
IT IS RECOMMENDED that this action be dismissed for lack of
subject matter jurisdiction.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 9, 2016
3
Plaintiff previously filed a similar action in this Court.
See Gwaltney v. Unemployment NCESU, No. 1:15CV770, Docket Entry 2
at 3 (M.D.N.C. Sept. 21, 2015) (seeking review of “unemployment
denied by NCESC”). The Court dismissed that action for lack of
subject matter jurisdiction. Gwaltney v. Unemployment NCESU, No.
1:15CV770, 2015 WL 5774779, at *2 (M.D.N.C. Sept. 30, 2015)
(unpublished), recommendation adopted, slip op. (M.D.N.C. Oct. 23,
2015).
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