Rollins v. State of North Carolina Highway Patrol Officers

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Adam Roy Rollins,
Plaintiff,
v.
John Doe #1, John Doe #2,
Defendants.
___________________________________
) Case No. 7:23-cv-03658-TMC-JDA
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)
) REPORT AND RECOMMENDATION
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)
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Adam Roy Rollins (“Plaintiff”), proceeding pro se, brings this civil action against the
above-named Defendants. All pretrial proceedings in this matter were referred to the
undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(e), D.S.C.
This matter is before the Court for screening of Plaintiff’s Amended Complaint.
[Doc. 23.] Also before the Court is Plaintiff’s motion to transfer venue. [Doc. 25.] Upon
review, the undersigned concludes that this action should be transferred to the United
States District Court for the Western District of North Carolina.
BACKGROUND
Procedural History
Plaintiff commenced this action on July 28, 2023, by filing a handwritten document
that was construed as a complaint filed pursuant to 42 U.S.C. § 1983 along with certain
attachments. [Docs. 1; 1-1; 1-2.] Thereafter, in compliance with this Court’s Order dated
August 1, 2023 [Doc. 5], Plaintiff filed a complaint on the standard form [Doc. 1-4]. The
Court construed both the original handwritten document and the standard form together
as the Complaint filed in this matter but concluded that the Complaint was subject to
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summary dismissal. [Doc. 21.] Accordingly, the undersigned entered an Order dated
October 31, 2023, notifying Plaintiff that his Complaint was subject to summary dismissal
and affording Plaintiff an opportunity to file an amended pleading to cure the deficiencies
identified in the Court’s Order. [Id. at 7–8.]
On November 16, 2023, Plaintiff filed an Amended Complaint. [Doc. 23.]
Additionally, Plaintiff filed a motion to transfer the case to the Western District of North
Carolina. [Doc. 25.] That motion is ripe for review.
Factual Allegations
Plaintiff makes the following pertinent allegations in his Amended Complaint. [Doc.
23.] Plaintiff contends his constitutional rights were violated in that Defendants engaged
in excessive use of force, deliberate indifference, and reckless disregard. [Id. at 4.]
Defendants are officers with the North Carolina Highway Patrol. [Id.] On September 7,
2020, in Henderson County, North Carolina, while Plaintiff was joyriding on his motorcycle,
Defendant John Doe # 2 barricaded Plaintiff and caused a collision. [Id. at 5.] Defendant
John Doe # 1 then pulled his police vehicle onto Plaintiff’s body, breaking his ribs and
puncturing his lungs. [Id. at 6.]
Plaintiff contends he suffered various injuries including a broken arm, broken ribs,
a broken ankle, a torn liver, road rash, and a broken scapula. [Id.] He had to undergo liver
surgery and have his left arm reconstructed with plates, screw, and pins, as well as have
staples and stitches. [Id.] For his relief, Plaintiff seeks $3 million in damages due to his
physical injuries, emotional damages, and pain and suffering. [Id.]
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Plaintiff also has attached documents to his Amended Complaint containing
additional allegations concerning his claims. [Docs. 23-1; 23-2; 23-3.]
STANDARD OF REVIEW
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction
and held to a less stringent standard than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent
standard, Plaintiff’s Complaint is subject to summary dismissal. The mandated liberal
construction afforded to pro se pleadings means that if the court can reasonably read the
pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district
court may not rewrite a petition to include claims that were never presented, Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff’s legal arguments for
him, Small v. Endicott, 998 F.2d 411, 417–18 (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). 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, 391 (4th Cir. 1990).
Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and
“seeks redress from a governmental entity or officer or employee of a governmental entity.”
28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court would
still be charged with screening the lawsuit to identify cognizable claims or to dismiss the
Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be
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granted or (2) seeks monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A.
Plaintiff also filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis
statute, which authorizes the district court to dismiss a case if it is satisfied that the action
“fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B).
Finally, this Court possesses the inherent authority to review the pro se pleadings
to ensure that subject matter jurisdiction exists and that a case is not frivolous. See
Ferguson v. Wooton, 741 F. App’x 955 (4th Cir. 2018) (collecting cases and explaining that
“[f]rivolous complaints are subject to dismissal pursuant to the district court’s inherent
authority, even when the plaintiff has paid the filing fee” and that “dismissal prior to service
of process is permissible when a court lacks subject matter jurisdiction”); Doiley v. Lieber
Corr. Inst., No. 2:07-cv-3969-PMD, 2008 WL 190637, at *1 (D.S.C. Jan. 17, 2008)
(explaining a plaintiff’s “claims are subject to an initial sua sponte review by the Court
pursuant to the Court’s inherent authority to ensure that subject matter jurisdiction exists”
even where the pro se plaintiff paid the filing fee and did not seek to proceed in forma
pauperis).
DISCUSSION
As noted, Plaintiff has filed a motion to transfer this action to the proper judicial
district. [Doc. 25.] In his motion, Plaintiff explains that he was informed that the United
States District Court for the District of South Carolina lacks personal jurisdiction over the
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Defendants named in this case. [Id.] Plaintiff contends that, having researched the issue,
he now realizes that this case should have been filed in the District where the Defendants
reside and where the actions occurred. [Id.] As such, Plaintiff asks the Court to transfer
the case to the “District of North Carolina, Asheville Division under Judicial Code Section
1406(a).” [Id.]
The undersigned notes that the appropriate judicial district referenced by Plaintiff
appears to be the United States District Court for the Western District of North Carolina.
Further, the Court construes Plaintiff’s motion as one seeking to transfer venue pursuant
to 28 U.S.C. § 1406(a).
Venue Law
28 U.S.C. § 1391(b) provides that the proper venue for a plaintiff to pursue a claim
in a diversity action, such as the present case, lies in
(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial
district in which any defendant is subject to the court's
personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b). “The burden lies with the plaintiff to establish that venue is proper
in the judicial district in which the plaintiff has brought the action.” Hackos v. Sparks, 378
F. Supp. 2d 632, 634 (M.D.N.C. 2005).
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“When a plaintiff files an action in the wrong venue, 28 U.S.C. § 1406(a) directs
courts to ‘dismiss, or if it be in the interest of justice, transfer such case’ to the proper
venue.”1 Levi v. Harris Teeter, LLC, No. 4:16-cv-1083-RBH-TER, 2016 WL 4942057, at
*2 (D.S.C. Aug. 25, 2016), Report and Recommendation adopted by 2016 WL 4911047
(D.S.C. Sept. 15, 2016). The choice to dismiss or transfer a case afforded by 28 U.S.C.
§ 1406 lies within the sound discretion of the district court. See Quinn v. Watson, 145 F.
App’x 799, 800 (4th Cir. 2005). Because federal district courts are vested with the inherent
power to control and protect the administration of court proceedings, see White v. Raymark
Indus., Inc., 783 F.2d 1175, 1177 (4th Cir. 1986), the district court has the power to
consider sua sponte whether venue is proper, see Harmon v. Sussex Cnty., No. 4:17-
cv-2931-RBH-TER, 2017 WL 6506396, at *1 (D.S.C. Nov. 13, 2017), Report and
Recommendation adopted by 2017 WL 6498165 (D.S.C. Dec. 19, 2017).
Venue Analysis
The undersigned concludes that this Court is not the proper venue to entertain
Plaintiff’s claims. Instead, a more appropriate venue is the United States District Court for
the Western District of North Carolina.2 Thus, this case should be dismissed or
transferred. See 28 U.S.C. § 1406(a) (requiring that a case filed in an improper venue
must be dismissed, or, if it is in the interest of justice, transferred to a district in which it
1 Section 1406(a) provides, “The district court of a district in which is filed a case
laying venue in the wrong division or district shall dismiss, or if it be in the interests of
justice, transfer such case to any district or division in which it could have been brought.
28 U.S.C. § 1406.
2 The Court expresses no opinion as to whether other districts might also be proper
venues.
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could have been brought). As noted, Plaintiff has requested that the case be transferred
and the undersigned concludes that would best serve the interests of justice for the
reasons below.
Plaintiff is presently an inmate incarcerated at the Livesay Correctional Institution
in Una, South Carolina. [Doc. 23 at 2.] Plaintiff alleges that Defendants are both police
officers with the North Carolina Highway Patrol in Henderson, North Carolina. [Id. at 4.]
Further, Plaintiff alleges that the events giving rise to his claims occurred in Henderson
County, North Carolina. [Id. at 5.]
Although Plaintiff filed this action in this Court, he now concedes that venue does
not properly lie in this District. The undersigned agrees and concludes that, based on the
allegations noted above, this District is not the proper venue because Defendants appear
to be citizens and residents of North Carolina and the events giving rise to the claims in this
case occurred primarily in North Carolina.3 As such, it appears that venue for this action
3 As Plaintiff apparently concedes, he cannot show that “a substantial part of the
events or omissions giving rise to the claim occurred” in South Carolina. 28 U.S.C.
§ 1391(b)(2) (emphasis added).
The test for determining venue [under § 1391(b)] is not the
defendant’s contacts with a particular district, but rather the
location of those events or omissions giving rise to the claim.
In general, in determining whether events or omissions are
sufficiently substantial to support venue under the amended
statute, a court should not focus only on those matters that are
in dispute or that directly led to the filing of the action. Rather,
it should review the entire sequence of events underlying the
claim.
Flexible Techs., Inc. v. SharkNinja Operating LLC, No. 8:17-cv-00117-DCC, 2018 WL
1175043, at *5 (D.S.C. Feb. 14, 2018) (citations and internal quotation marks omitted),
Report and Recommendation adopted by 2018 WL 1158425 (D.S.C. Mar. 5, 2018). Here,
the entire sequence of events underlying the claims in Plaintiff’s Complaint demonstrates
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properly lies in the Western District of North Carolina and not in this District. Accordingly,
the Court finds that transfer pursuant to 28 U.S.C. § 1406(a) is appropriate.4
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the District
Court transfer this action to the Western District of North Carolina.
IT IS SO RECOMMENDED.
s/Jacquelyn D. Austin
United States Magistrate Judge
November 21, 2023
Greenville, South Carolina
Plaintiff’s attention is directed to the important notice on the next page.
that venue is not proper in this District. Id. at *6.
4 The undersigned further concludes that transfer rather than dismissal would best
serve the interests of justice in this case. Significantly, it appears that, if the Court were
to dismiss this action rather than transfer it, Plaintiff’s claims might be barred by the
applicable statute of limitations. Therefore, the case should be transferred rather than
dismissed.
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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:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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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