Cabbagestalk v. Glidewell et al

Filing 10

ORDER: Plaintiff shall advise the court, in writing, within 14 days of the date of this Order, whether in the action he filed in state court, (1) he is pursuing any claims for violations of his federal constitutional rights pursuant to 42 U.S.C. § 1983 or any other types of claims under any other federal statute, constitutional provision, or treaty; (2) he is only pursuing claims under the South Carolina Constitution and/or other South Carolina state laws, or (3) whether he is pursuing claims under both South Carolina and federal law. Signed by Magistrate Judge Kaymani D West on 11/1/2013. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Shaheen Cabbagestalk,# 295567,
Plaintiff,
vs.
DHO Ms. Glidewell;
Major F. Musier;
Sgt. L. Henderson;
Warden Leroy Cartledge;
Grievance Coordinator Ms. Tolbert;
The McCormick County Prison Head Personal of
Classifications;
Ms. J. Jimenez; in their individual capacity and their official
capacity,
Defendants.
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This action, filed by Plaintiff proceeding pro se, was originally filed in the South Carolina
Court of Commons Pleas in McCormick County. The case number in state court is 2013 CP 3504.
Defendants removed this case to United States District Court, alleging jurisdiction lies in this
court because “federal questions exist pursuant to 28 U.S.C. § 1331.” Notice of Removal 1, ECF No.
1. However, on page one of the Complaint originally filed in state court, Plaintiff states that his case
is a “tort claim” and cites to specific sections of the South Carolina Code that are part of the South
Carolina Torts Claim Act: “15-78-10; 15-78-60 (25) [through] 15-78-120 et seq.” Compl. 1; ECF
No. 1-1. Plaintiff further states that “jurisdiction over these matters [is] pursuant to S.C. Code Ann.
§ 36-2-802 and 36-2-803, as well [as] Article V of the Constitution of the State of South Carolina
and the court powers.” Compl. 7. There are no specific citations of any federal statute or
constitutional provision anywhere in the Complaint. Although review of Plaintiff’s Complaint does
reveal minimal use of some terminology often associated with claims under certain federal
constitutional amendments, the same (or similar) words are also used in connection with the various
sections of the South Carolina Constitution.
It is well settled federal law 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 Cnty. Pub. Defenders, CA No.
4:11-2936-CMC-JDA, 2011 WL 6937608, *2 (D.S.C. Dec. 8, 2011). Also, removal statutes are to
be construed against removal jurisdiction, 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). Applying the required liberal
construction rules applicable to pro se litigants, Plaintiff’s specific references and citations to South
Carolina state law as the basis for his claims and jurisdiction over them renders his passing

references to certain amendments to the United States Constitution (8th and 14th) and use of words
commonly associated with certain federal constitutional claims (deliberate indifference, cruel and
unusual punishment, due process) ambiguous.
Accordingly, based on the foregoing,
IT IS ORDERED that Plaintiff shall advise the court, in writing, within 14 days of the date
of this Order, whether in the action he filed in state court, (1) he is pursuing any claims for violations
of his federal constitutional rights pursuant to 42 U.S.C. § 1983 or any other types of claims under
any other federal statute, constitutional provision, or treaty;(2) he is only pursuing claims under the
South Carolina Constitution and/or other South Carolina state laws, or (3) whether he is pursuing
claims under both South Carolina and federal law.
If Plaintiff advises the court that he is only pursuing claims under South Carolina law, this
case will be remanded to state court. If Plaintiff advises the court that he is pursuing only federal
claims or both federal and state claims, this case will progress in this court in the usual manner.
IT IS FURTHER ORDERED that the Clerk of Court shall withhold issuance of any
scheduling order in this case until further direction from the undersigned.
IT IS SO ORDERED.

November 1, 2013
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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