CUMMINGS v. RAHMATI et al
Filing
5
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 03/30/2017. Plaintiff's Application to Proceed In Forma Pauperis 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. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN D. CUMMINGS,
Plaintiff,
v.
NEVZETA RAHMATI, et al.,
Defendants.
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1:17cv196
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 (Docket Entry 2).
For the reasons that follow,
the Court will grant Plaintiff’s instant Application for the
limited purpose of recommending dismissal of this action for lack
of subject matter jurisdiction.
LEGAL STANDARD
“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 that “the [C]ourt shall dismiss the case at any time if
the [C]ourt determines . . . the action . . . is frivolous.”
U.S.C. § 1915(e)(2).
28
“[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
its frivolity review.
Overstreet v. Colvin, 4:13-CV-261, 2014 WL
353684, at *3 (E.D.N.C. Jan. 30, 2014) (citing Lovern v. Edwards,
190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the
question of subject matter jurisdiction at the outset of the
litigation is often the most efficient procedure”)).
“‘[F]ederal
courts are courts of limited jurisdiction,’ constrained to exercise
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only the authority conferred 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)).
invoking
jurisdiction,
here
Plaintiff,
establishing subject matter jurisdiction.
bears
the
The party
burden
of
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).
INTRODUCTION
Asserting jurisdiction pursuant to “5.1.A Section 1983 42
U.S.C., 25 C.F.R. 11.411 Criminal Trespass[,] the Constitution of
the United States of America and it[s] rights privileges and
immunities[, and] the 14th Amendment Due Process Clause,” Plaintiff
initiated this action against Nevzeta Rahmati, Habibollah Rahmati,
NC Auto Dealer Inc., and Hook and Go Towing (collectively, the
“Defendants”).
(Docket Entry 2 at 1 (all-caps font omitted)).1
1
Public records reflect that Habibollah Rahmati serves as the
president and registered agent, and Nevzeta Rahmati serves as the
secretary, of NC Auto Dealer Inc. See North Carolina Department of
t h e
S e c r e t a r y
o f
S t a t e ,
https://www.sosnc.gov/Search/profcorp/9597496 (last visited Mar.
27, 2017). The Court may consider public records in assessing the
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According
to
individually,
the
Complaint,
used
an
Defendants,
unauthorized
GPS
collectively
tracking
and/or
device
on
Plaintiff’s vehicle, unlawfully trespassed upon property located in
Greensboro,
North
vehicle, and,
Carolina,
through
illegally
repossessed
that repossession,
Plaintiff’s
improperly
converted
Plaintiff’s personal belongings located in the vehicle. (Id. at 12.)
The Complaint further asserts that Defendants have refused to
return Plaintiff’s vehicle and personal belongings.
(Id. at 2.)
Finally, the Complaint alleges that Defendants’ acts violated
Plaintiff’s due process rights, as well as his “civil rights
privileges and immunities of the Constitution of the United States
of America.”
(Id. at 3 (all-caps font omitted).)
Plaintiff requests monetary damages.
For relief,
(Id. at 2-3.)
ANALYSIS
Federal
courts
“have
original
jurisdiction
of
all
civil
actions arising under the Constitution[ and] laws . . . of the
United States.”
28 U.S.C. § 1331.2
Here, the Complaint asserts
Complaint. See Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180
(4th Cir. 2009) (recognizing that courts “may properly take
judicial notice of matters of public record”); Reid v. State of
North Carolina, No. 3:09CV541, 2010 WL 890263, at *3 (W.D.N.C. Mar.
8, 2010) (taking judicial notice of public records when conducting
in forma pauperis review under Section 1915(e)(2)).
2
Federal courts also maintain “original jurisdiction of all
civil actions 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). Under
Section 1332(a), original “jurisdiction does not exist unless each
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federal jurisdiction under both 25 C.F.R. § 11.411 and 42 U.S.C.
(Docket Entry 2 at 1.)3
§ 1983.
As an initial matter, 25 C.F.R.
§ 11.411 constitutes a federal regulation prohibiting trespass upon
Indian reservations.
See United States v. King, No. 4:08-cr-8,
2008 WL 4710744, at *9 (D. Alaska Oct. 24, 2008) (explaining that
25 C.F.R. § 11.411 “describes the offense of criminal trespass” and
“applies to Indian reservations”). The Complaint lacks any factual
matter
to
suggest
reservation.
fails
to
that
Defendants
trespassed
(See Docket Entry 2 at 1-3.)
allege
that
Defendants
upon
an
Indian
Because the Complaint
trespassed
onto
an
Indian
reservation, 25 C.F.R. § 11.411 cannot serve as the basis for
federal jurisdiction over this matter.
Turning to the Complaint’s remaining purported jurisdictional
basis, to bring a 42 U.S.C. § 1983 claim, Plaintiff must “establish
defendant is a citizen of a different State from each plaintiff.”
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)
(emphasis in original).
In this case, the Civil Cover Sheet
asserts that Plaintiff and at least one defendant qualify as
citizens of North Carolina (Docket Entry 3 at 1), thus precluding
original jurisdiction over this action under Section 1332(a).
Moreover, the Complaint expressly invokes only federal question
jurisdiction. (See Docket Entry 2 at 1 (asserting jurisdiction
under a federal law and regulation).) Accordingly, the Court lacks
diversity jurisdiction over this matter.
3
With respect to Plaintiff’s jurisdictional references to the
United States Constitution, 42 U.S.C. § 1983 provides the statute
upon which Plaintiff could bring a federal action for violations of
his constitutional rights. See American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999) (explaining that Section 1983
authorizes an action for deprivations of federal constitutional
rights committed by state actors).
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that [he was] deprived of a right secured by the Constitution or
laws of the United States, and that the alleged deprivation was
committed [by a person acting] under color of state law.” American
Mfrs.
Mut.
Ins.
(emphasis added).
Co.
v.
Sullivan,
526
U.S.
40,
49–50
(1999)
“A person acts under color of state law only
when exercising ‘power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law.’”
Bailey v. Prince George’s Cty., 34 F. Supp. 2d
1025, 1026 (D. Md. 1999) (quoting United States v. Classic, 313
U.S. 299, 326 (1941)).
Put another way, “[t]he person charged
[under Section 1983] must either be a state actor or have a
sufficiently close relationship with state actors such that a court
would conclude that the non-state actor is engaged in the state’s
actions.”
DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999);
see also Bailey, 34 F. Supp. 2d at 1026 (“The alleged infringement
of federal rights must be fairly attributable to the state.”
(citing Rendell–Baker v. Kohn, 457 U.S. 830 (1982))). “In general,
private companies and corporations do not act under color of state
law.”
Ellis v. Santander Consumer USA, Civ. Action No. 13-2099,
2013 WL 3753624, at *5 (W.D. Tenn. July 15, 2013).
Here, Plaintiff asserts claims against two private companies,
Hook and Go Towing and NC Auto Dealer Inc., and two private
persons, Nevzeta Rahmati and Habibollah Rahmati, who serve as
officers
of
NC
Auto
Dealer
Inc.
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(Docket
Entry
2
at
1.)
Importantly, the Complaint contains no factual matter suggesting
that any defendant (1) works as a state official, (2) acted in
concert with a state official, or (3) violated Plaintiff’s rights
under
compulsion
of
a
state
official.
(See
id.
at
1-3.)
Accordingly, Defendants’ alleged conduct qualifies as private,
rather
than
state,
action.
See
DeBauche,
191
F.3d
at
507
(explaining that “private activity will generally not be deemed
‘state action’ unless the state has so dominated such activity as
to convert it into state action”).
Section 1983 cannot therefore
provide the grounds for federal jurisdiction over this matter. See
American Mfrs. Mut. Ins. Co., 526 U.S. at 50 (holding that Section
1983’s under-color-of-state-law requirement “excludes from its
reach merely private conduct, no matter how discriminatory or
wrongful” (internal quotation marks omitted)); see also Ellis, 2013
WL 3753624, at *5 (explaining that Section 1983 claims grounded
upon the repossession of the plaintiff’s vehicle failed as a matter
of law because “[t]here are no allegations whatsoever in the
complaint that reasonably suggest that [the defendant] engaged in
conduct that could be construed as ‘state action’”).
As a final matter, the Complaint appears to assert state-law
claims
of
trespass
to
real
property,
fraud,
and
conversion
regarding Defendants’ alleged repossession of Plaintiff’s vehicle.
(See Docket Entry 2 at 1-2.)
However, “Section 1983 provides no
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remedy for common law torts.”
Bailey, 34 F. Supp. 2d at 1027
(citing Street v. Surdyka, 492 F.2d 368, 371 (4th Cir. 1974)).
Under these circumstances, the Complaint fails to establish
subject matter jurisdiction and the obviousness of this defect
renders this action legally frivolous.
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 30, 2017
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