Marsh v. Iuvale

Filing 10

REPORT AND RECOMMENDATIONS that the Complaint be dismissed without prejudice and without issuance and service of process, re 1 Complaint filed by Anthony Michael Marsh. Objections to R&R due by 2/25/2011. Signed by Magistrate Judge Paige J Gossett on 2/7/2011. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Anthony Michael Marsh,
Plaintiff,
vs.
Tufa Jerome Iuvale,
Defendant.
___________________________________________

) C/A No. 3:10-3071-CMC-PJG
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REPORT AND
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RECOMMENDATION
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The plaintiff, Anthony Michael Marsh (“Plaintiff”), proceeding pro se, filed a
complaint on December 2, 2010. This matter is before the court pursuant to 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) DSC. In an order filed contemporaneously with
this Report and Recommendation, Plaintiff’s motion for leave to proceed in forma pauperis
(ECF No. 2) under 28 U.S.C. § 1915(a) has been granted. Therefore, this case is subject
to review pursuant to 28 U.S.C. § 1915(e)(2)(B). A review of the Complaint reveals the
absence of factual allegations that establish federal jurisdiction, so this action must be
dismissed.
INITIAL REVIEW GENERALLY
Under established local procedure in this judicial district, a careful review has been
made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915.
This review has been conducted in light of the following precedents: Ashcroft v. Iqbal, 129
S. Ct. 1937 (2009); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble,
429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); and Gordon v. Leeke, 574
F.2d 1147 (4th Cir. 1978).

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The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an
indigent litigant to commence an action in federal court without paying the administrative
costs of proceeding with the lawsuit. To protect against possible abuses of this privilege,
the statute allows a district court to dismiss the case upon a finding that the action is
“frivolous or malicious; fails to state a claim on which relief may be granted; or seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i-iii). A court may also dismiss a case sua sponte for lack of jurisdiction
or under Rule 41 of the Federal Rules of Civil Procedure. Link v. Wabash R.R. Co., 370
U.S. 626 (1962).
This court is required to liberally construe pro se complaints. Erickson v. Pardus,
551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than
those drafted by attorneys, id.;Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and
a federal district court is charged with liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially meritorious case. Hughes v. Rowe, 449
U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating
a pro se complaint, the plaintiff’s allegations are assumed to be true. Erickson, 551 U.S.
at 93 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
Nonetheless, the requirement of liberal construction does not mean that the court
can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable
in a federal district court. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990);
see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (outlining pleading requirements
under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”). The mandated

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liberal construction afforded to pro se pleadings means that if the court can reasonably
read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so;
however, a district court may not rewrite a complaint to include claims that were never
presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), construct the plaintiff's legal
arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), or “conjure up
questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985).
DISCUSSION
Plaintiff files suit against an individual he claims stole his identity by giving a law
enforcement officer Plaintiff’s name and date of birth during a traffic stop in Florida, for
which a speeding ticket was issued in Plaintiff’s name. (ECF No. 1 at 4.) The ticket was
never paid, and subsequently, Plaintiff was arrested for driving under suspension in
Columbia, South Carolina, where both parties currently reside. Plaintiff claims that “[a]fter
years of the defendents neglegence,” [sic] the defendant “admitted to the plaintiff in
December of 2009 of his unlawful actions.” (Id.) The Complaint fails to allege facts that
invoke federal court jurisdiction.
Federal courts are courts of limited jurisdiction, “constrained to exercise 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). Because federal
courts have limited subject matter jurisdiction, there is no presumption that the court has
jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing
Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337, 327 (1895). Accordingly, a federal court

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is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to
dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also
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.”).
Plaintiff has the responsibility for establishing that the court has jurisdiction in this
case, as “the facts providing the court jurisdiction must be affirmatively alleged in the
complaint.” Davis v. Pak, 856 F.2d 648, 650 (4th Cir. 1988) (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178 (1936). To this end, Federal Rule of Civil Procedure
8(a)(1) requires that the complaint provide “a short and plain statement of the grounds for
the court's jurisdiction.” If, however, the complaint does not contain “an affirmative
pleading of a jurisdictional basis, the federal court may find that it has jurisdiction if the
facts supporting jurisdiction have been clearly pleaded.” Pinkley, Inc., 191 F.3d at 399
(citing 2 Moore's Federal Practice § 8.03[3] (3d ed. 1997). If the court, viewing the
allegations in the light most favorable to the plaintiff, finds insufficient allegations in the
pleadings, the court will lack subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648,
654 (4th Cir. 1999).
The instant Complaint alleges the Defendant used Plaintiff’s name and date of
birth, “violating both U.S. State and Federal laws against identity theft, falling under the
categories of Section 1028 Title 18 Part I chapter 47 of the US Code.” (ECF No. 1 at 4.)
Inasmuch as Plaintiff attempts to establish federal jurisdiction in this civil lawsuit based on
Title 18 of the U.S. Code, which delineates crimes and criminal procedure, he fails. The
government enforces criminal statutes within criminal cases, and individuals in civil cases
cannot enforce criminal statutes. Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990)
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(“No citizen has an enforceable right to institute a criminal prosecution.”). A “private citizen
lacks a judicially cognizable interest in the prosecution or nonprosecution of another,” so
a criminal statute that only establishes a crime and punishment cannot be the basis for
subject matter jurisdiction in a civil action. Linda R. v. Richard V., 410 U.S. 614, 619
(1973). The reference to 18 U.S.C. § 1028 in the Complaint cannot establish jurisdiction
in this civil action.1
To the extent Plaintiff's allegations can be construed to set forth causes of action
based on state law, such as negligence, they fail to establish federal jurisdiction. Federal
courts have the discretion to hear and decide state law claims in conjunction with federal
law claims, through the exercise of “supplemental jurisdiction.”

28 U.S.C. § 1367;

Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 387 (1998). Plaintiff has not asserted
cognizable claims based on federal law, so this court cannot exercise supplemental
jurisdiction over Plaintiff's state law claims.

See Lovern, 190 F.3d at 655 (“[T]he

Constitution does not contemplate the federal judiciary deciding issues of state law among
non-diverse litigants.”).

A civil action for Plaintiff's state law claims could also be

cognizable in this Court under the diversity statute, if that statute’s requirements were
satisfied. See 28 U.S.C. § 1332(a). The diversity statute requires complete diversity of
parties and an amount in controversy in excess of seventy-five thousand dollars
($75,000.00). Id. Complete diversity of parties in a case means that no party on one side
1

If Plaintiff is seeking to have this court initiate criminal proceedings against the
defendant, this court cannot do so. Prosecutorial discretion does not reside in the judicial
branch. The decision whether or not to prosecute, and what charge to file or bring, generally
rests within the prosecutor's discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978);
United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992).
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may be a citizen of the same State as any party on the other side. See Owen Equipment
& Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978). The Complaint indicates that both
parties reside in South Carolina, therefore this court does not have jurisdiction under the
diversity statute in this case.
The Complaint fails to establish subject matter jurisdiction in this court and therefore
the case must be dismissed. Fed. R. Civ. P. 12(h)(3).
RECOMMENDATION
Accordingly, the court recommends that the Complaint in this matter be dismissed
without prejudice and without issuance and service of process.

_________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
February 7, 2011
Columbia, South Carolina

Plaintiff's attention is directed to the important notice on the next page.

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Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report
and Recommendation with the District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections are made and the basis
for such objections. “[I]n the absence of a timely filed objection, a district court need not
conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.’” Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee’s note).
Specific written objections must be filed within fourteen (14) days of the date of
service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5
may be accomplished by mailing objections to:
Larry W. Propes, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal from a judgment of the
District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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