Twitty v. Nationwide Insurance Comp et al

Filing 53

ORDER RULING ON REPORT AND RECOMMENDATIONS. The Magistrate Judge's 42 Report and Recommendations is adopted and the Complaint is dismissed for lack of jurisdiction without issuance and service of process. Additionally, the Plaintiff's other pending motions are denied as moot. Signed by Honorable R Bryan Harwell on 10/24/2011. (hcic)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Irving E. Twitty,

)
)
Plaintiff,
)
)
v.
)
)
Nationwide Insurance Co; Patricia Dugan, )
CPCU, Aic; Cherylon Dean, Claims
)
Invest.; Dennis Gillilan, Claims Manag; )
Alicia W. Cornelius, Regulator; Wanda
)
W. Smith; Tijuana L. Crisp; Owner of
)
Jeep Grand Cherokee; Geoffrey W.
)
Gibbon; Greenville D. Morgan, Jr.; Mr. )
Judge John C. Few,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 6:09-cv-02381-RBH

ORDER

This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Paige J. Gossett.1 In the R&R, the Magistrate Judge
recommends that the Court dismiss the Complaint for lack of jurisdiction without issuance and
service of process.

The following motions are also pending before the Court: (1) Plaintiff’s

Motion to Amend/Correct Complaint [Doc. #49] and (2) Plaintiff’s Motion to Present a Document
as Proof of Evidence [Doc. #51].
Procedural History and Factual Background
This case was initiated on September 8, 2009, when the Plaintiff filed a Complaint
regarding a “civil action tort claim . . . concerning an automobile wreck that happened on the date
of August 30th, 2006.” Compl., Doc. #1, p.4. It appears in his objections that the Plaintiff argues

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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this
matter was referred to United States Magistrate Judge Gossett for pretrial handling.

he intends to bring his claims against the Defendants pursuant to 42 U.S.C. § 1983, and he
requests that the Court issue an order ruling that the Defendants compensate him for his pain and
suffering resulting from the automobile wreck. Id. at 10. The Plaintiff is incarcerated at the
Kershaw Correctional Institution in Kershaw, South Carolina, and files this action in forma
pauperis under 28 U.S.C. § 1915.
On May 24, 2011, the Fourth Circuit Court of Appeals issued an opinion on an appeal by
the Plaintiff. The opinion vacated this Court's order which had denied the Plaintiff's motion to
proceed in forma pauperis pursuant to the "three strikes" rule of the PLRA. The case was
remanded for further consideration of the PLRA application in accordance with the Fourth
Circuit's unpublished opinion and McLean v. United States, 566 F.3d 391 (4th Cir. 2009). On June
15, 2011, the mandate was issued by the Fourth Circuit and the case was automatically referred
by the Clerk to Magistrate Judge Paige J. Gossett and the additional motions filed by the Plaintiff
were also referred to the Magistrate, pursuant to Local Rule 73.02. On August 9, 2011, the
Magistrate Judge granted the Plaintiff’s motion for leave to proceed in forma pauperis and issued
the R&R recommending that the Complaint be dismissed for lack of jurisdiction without issuance
and service of process. Subsequently, the Plaintiff filed timely objections to the R&R.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de
novo determination of those portions of the R&R to which specific objection is made, and the

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Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, the Court need not conduct a
de novo review when a party makes only general and conclusory objections that do not direct the
Court to a specific error in the Magistrate Judge’s proposed findings and recommendations.
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982). In the absence of a timely filed specific
objection, the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Discussion
In the R&R, the Magistrate Judge concludes that this case should be summarily dismissed
because “[t]he instant Complaint provides no basis for either federal question jurisdiction under
28 U.S.C. § 1331 or diversity jurisdiction under 28 U.S.C. § 1332.” R&R, Doc. #42, p.4. In his
first objection, the Plaintiff appears to argue that this Court has jurisdiction of the subject matter
because he brought his claims pursuant to 42 U.S.C. § 1983. However, the Plaintiff has not
stated a viable § 1983 claim. In order to state a claim for relief under § 1983, the Plaintiff must
sufficiently allege (1) that he “has been deprived of a right, privilege or immunity secured by the
Constitution or laws of the United States; and (2) that the conduct complained of was committed
by a person acting under the color of state law.” Dowe v. Total Action Against Poverty in
Roanoke Valley, 145 F.3d 653, 658 (4th Cir.1998). The Plaintiff has made no allegation that the
Defendants acted under color of state law, and it appears to be clear from the Complaint that none
of the Defendants are state actors, except Judge Few; who is entitled to absolute immunity. See
Stump v. Sparkman, 435 U.S. 349 (1978).
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Next, the Plaintiff appears to argue that the Defendants have waived any defenses
concerning jurisdiction or the Plaintiff’s failure to state a claim on which relief may be granted.
However, the Plaintiff’s Complaint was filed pursuant to 28 U.S.C. § 1915. To protect against
possible abuses related to indigent litigants commencing actions without prepaying the
administrative costs of the lawsuits, the statute allows a district court to dismiss a case, without
issuance and service of process, upon a finding that the action fails to state a claim on which
relief may be granted. Id. § 1915(e)(2)(B). Thus, under § 1915(e)(2)(B), a claim based on a
meritless legal theory may be dismissed sua sponte. See Neitzke v. Williams, 490 U.S. 319, 324-25
(1989). As noted above, the Plaintiff has not stated a viable claim pursuant to 42 U.S.C. §1983
to establish federal question jurisdiction under 28 U.S.C. § 1331 or diversity jurisdiction under
§ 1332, and dismissal is proper because this Court lacks subject matter jurisdiction.
In the remainder of his objections, the Plaintiff appears to argue that the Court does, in
fact, have jurisdiction over this matter. The Court disagrees. Federal courts are “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). As such,
a federal court has an affirmative “duty to inquire, sua sponte, whether a valid basis for
jurisdiction exists, and to dismiss the action if no such ground appears.” Id. (citations omitted);
see Fed. R. Civ. P. 12(h)(3).

Here, the Plaintiff complains about injuries sustained in an

automobile accident on August 31, 2006; thus, the Plaintiff appears to assert a state law claim for
personal injury.

As stated above, the Complaint provides no basis for federal question

jurisdiction. Also, the Court lacks diversity jurisdiction over this matter because there is not
complete diversity between the Plaintiff and the Defendants, and it appears that the amount in
controversy does not exceed the sum of $75,000. See 28 U.S.C. § 1332(a)(1).
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Since the

Complaint provides no basis for either federal question jurisdiction or diversity jurisdiction, the
Plaintiff’s argument for the exercise of “supplemental” jurisdiction is unavailing. See 28 U.S.C.
§ 1367(a); Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 387 (1998).
Having thoroughly reviewed the entire record, the Plaintiff’s objections, and the applicable
law, the Court finds that the Magistrate Judge fairly and accurately summarized the facts and
applied the correct principles of law. As such, the Court agrees with the recommendation of the
Magistrate Judge and finds that dismissal is appropriate.
Conclusion
Based on the foregoing, it is ORDERED that the Magistrate Judge’s R&R is adopted and
incorporated herein by reference, and the Complaint is DISMISSED for lack of jurisdiction
without issuance and service of process. Additionally, the Plaintiff’s other pending motions are
denied as moot.2
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
October 24, 2011

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While the Plaintiff seeks leave to file an amended complaint to: (1) “Add the jurisdiction
of this Court” and certify his domicile and citizenship; (2) “Add the name of the Owner of
the Jeep Grand Cherokee”; and (3) “To change the amount to be compensated to include
punitive damages,” the Court would still lack jurisdiction over this matter. See 28 U.S.C.
§ 1332(a)(1).

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