Krug v. Stonerock

Filing 12

OPINION and ORDER RULING ON REPORT AND RECOMMENDATIONS for 7 Report and Recommendations: This action is dismissed without prejudice and without issuance and service of process. Signed by Honorable Cameron McGowan Currie on 1/10/2012. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Gregory C. Krug,

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Plaintiff,
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v.
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Charles E. Stonerock,
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Defendant.
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___________________________________ )

C/A NO. 4:11-3297-CMC-JRM

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint, filed in this court on
December 2, 2011.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), DSC, this
matter was referred to United States Magistrate Judge Joseph R. McCrorey for pre-trial proceedings
and a Report and Recommendation (“Report”). On December 19, 2011, the Magistrate Judge issued
a Report recommending that the complaint be dismissed without prejudice and without issuance and
service of process. The Magistrate Judge advised Plaintiff of the procedures and requirements for
filing objections to the Report and the serious consequences if he failed to do so. Plaintiff filed
objections to the Report on January 4, 2012.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by

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the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After conducting a de novo review as to objections made, and considering the record, the
applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections,
the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court adopts and
incorporates the Report and Recommendation by reference in this Order.
Plaintiff attempts to establish diversity jurisdiction in this matter by providing information
relating to his state of citizenship prior to his incarceration. Additionally, Plaintiff offers argument
seeking to establish that the amount in controversy exceeds $ 75,000. Assuming, for purposes of
this matter, that Plaintiff is a citizen of California, diversity of citizenship exists in this matter, as
“[a] prisoner is a citizen of ‘the state of which he was a citizen before he was sent to prison unless
he plans to live elsewhere when he gets out, in which event it should be that state.’” Bontkowski v.
Smith, 305 F.3d 757, 763 (7th Cir. 2002) (quoting Singletary v. Cont’l Illinois Nat’l Bank & Trust
Co., 9 F.3d 1236, 1238 (7th Cir.1993)). However, Plaintiff’s argument relating to the amount in
controversy falls short of establishing this court’s jurisdiction. The complaint itself only seeks to
compel the production of medical records. See Compl. (ECF No. 1, filed Dec. 2, 2011). Plaintiff
contends that speculative events which may or may not occur absent the records’ production
(potential amputation of his lower left leg and “the extent to which those damages are properly
attributable to the employees of [certain federal Bureau of Prisons facilities or other detention
centers], versus South Carolina Cardiovascular Surgery . . . .”) establishes the requisite monetary
threshold to give this court jurisdiction. However, events which may or may not occur after the
filing of the complaint do not operate to establish a court’s jurisdiction at the time the complaint is

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filed. See Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 822 (8th Cir. 2011) (finding that “the
court’s jurisdiction is measured [ ] at the time the action is commenced . . . .”). As noted by the
Eighth Circuit, “[s]ubsequent events may . . . be relevant to prove the existence or nonexistence of
diversity jurisdiction at the time of filing,” Scottsdale Ins. Co. v. Universal Crop Prot. Alliance, Inc.,
620 F.3d 926, 931 (8th Cir.2010), but “distinction must be made . . . between subsequent events that
change the amount in controversy and subsequent revelations that, in fact, the required amount was
or was not in controversy at the commencement of the action.” Schubert, 649 F.3d at 823
(quotations and citation omitted). As correctly found by the Magistrate Judge, based on Plaintiff’s
complaint, it is “facially apparent, to a legal certainty, that Plaintiff cannot recover an amount that
‘exceeds the sum or value of $75,000, exclusive of interest and costs’ in this case.” Report and
Recommendation at 5 n.1 (ECF No. 7 (filed Dec. 19, 2011) (quoting 28 U.S.C. § 1332(a)).
Therefore, this action is dismissed without prejudice and without issuance and service of
process.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
January 10, 2012

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