Henry v. Dean et al

Filing 18

Order: IT IS ORDERED that Plaintiff shall clarify to the Court, in writing, within fourteen (14) days of the date of this Order, whether, in his state court complaint, he is only pursing claims under South Carolina state law o r if he is pursing any claims under federal law. If Plaintiff advises the Court that he is only pursuing claims under South Carolina law, this case may be remanded to state court. If Plaintiff advises the Court that he is only or also pursuing claims under 42 U.S.C. § 1983 for violations of his federal constitutional rights, this case will progress in this Court in the usual manner. Defendants may file a response to Plaintiff's response within seven (7) days of the filing of Pla intiff's response in this case. IT IS FURTHER ORDERED that the parties shall disregard the Scheduling Order that was prematurely entered in this case and which is, hereby, vacated. ECF No. 8 . The Clerk of Court is directed to vacate the Schedu ling Order currently on the docket and to withhold issuance of any other order in this case based on Defendants' Answer, ECF No. 4 , until further direction from the undersigned. IT IS SO ORDERED. Signed by Magistrate Judge Thomas E Rogers, III on 8/26/2013. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
John Henry, # 299199,

) C/A No. 4:13-1947-MGL-TER
)
Plaintiff,
)
)
vs.
)
ORDER
)
AM Dean, and
)
South Carolina Department of Corrections,
)
)
Defendants.
)
________________________________________________ )

This action, filed by the Plaintiff pro se, was originally filed in the South Carolina Court of
Commons Pleas in Richland County. The case number in state court is 2013-CP-400-997. This case
is before the undersigned magistrate judge for all pretrial proceedings pursuant to this Court’s Local
Civil Rule 73.02(B)(2)(e).
Defendants removed this case to United States District Court, asserting that Plaintiff is
alleging “causes of action under the United States Constitution and 42 USC § 1983,” which, if true,
would show subject-matter jurisdiction over Plaintiff’s claims in this Court. ECF No. 1. Review
of Plaintiff’s state court complaint reveals one use of a phrase often associated with claims under
certain federal constitutional amendments (“cruel and unusual punishment”), id. Attach. 1, State
Compl. 3, and the claim apparently arose in a state prison, however, there are no specific,
unambiguous references to any federal statute or treaty, nor are there specific, unambiguous
statements about any federal constitutional provision allegedly violated. Instead, Plaintiff
specifically couches his allegations in “negligence” and states in his state court complaint: “This
action is filed pursuant to 15-78-10 tort claim act.” Id. Attach 1, State Compl. 4.
Applying the required liberal construction rules applicable to pro se litigants, Plaintiff’s clear
statement that he brought his state court action for “negligence” and pursuant to the South Carolina
Torts Claim Act (“SCTCA”), of which S.C. Code § 15-78-10 is a part, renders any passing use in
of a phrase or phrases commonly associated with federal constitutional claims ambiguous.
It is well settled federal law in the removal area that removal jurisdiction is to be strictly
construed against removal and in favor of remand, see, e.g., Cheshire v. Coca-Cola Bottling
Affiliated, Inc., 758 F. Supp. 1098, 1102 (D.S.C. 1990)(collecting cases); Bellone v. Roxbury Homes,
Inc., 748 F. Supp. 434, 436 (W.D. Va. 1990), and that the plaintiff is the master of his complaint.
Pinney v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005); see also Negron-Fuentes v. UPS Supply
Chain Solutions, 532 F.3d 1, 6 (1st Cir. 2008); see also Addison v. Charleston County Public
Defenders,NO. CA 4:11-2936-CMC-JDA, 2011 WL 6937608, *2 (D.S.C. Dec 08, 2011).
Accordingly, based on the foregoing,

IT IS ORDERED that Plaintiff shall clarify to the Court, in writing, within fourteen (14)
days of the date of this Order, whether, in his state court complaint, he is only pursing claims under
South Carolina state law or if he is pursing any claims under federal law.
If Plaintiff advises the Court that he is only pursuing claims under South Carolina law, this
case may be remanded to state court. If Plaintiff advises the Court that he is only or also pursuing
claims under 42 U.S.C. § 1983 for violations of his federal constitutional rights, this case will
progress in this Court in the usual manner.
Defendants may file a response to Plaintiff’s response within seven (7) days of the filing of
Plaintiff’s response in this case.
IT IS FURTHER ORDERED that the parties shall disregard the Scheduling Order that was
prematurely entered in this case and which is, hereby, vacated. ECF No. 8.
The Clerk of Court is directed to vacate the Scheduling Order currently on the docket and
to withhold issuance of any other order in this case based on Defendants’ Answer, ECF No. 4, until
further direction from the undersigned.
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge

August 26, 2013
Florence, South Carolina

Plaintiff’s attention is directed to the important warning on the next page.

2

IMPORTANT INFORMATION ....PLEASE READ CAREFULLY
WARNING TO PRO SE PARTY OR NONPARTY FILERS
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OR SHOULD BE REMOVED FROM ALL DOCUMENTS BEFORE YOU SUBMIT THE
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Rule 5.2 of the Federal Rules of Civil Procedure provides for privacy protection of electronic
or paper filings made with the court. Rule 5.2 applies to ALL documents submitted for filing,
including pleadings, exhibits to pleadings, discovery responses, and any other document submitted
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