United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Senior United States District Judge
Tina Wells, proceeding pro se, brings this action against
defendant Karen Turner for slander. This matter is currently
before the court on plaintiffs motion for leave to proceed m
forma pauperis. Although the court grants the
motion, for the following reasons, the court concludes that
the complaint must be dismissed pursuant to Rule 12(h)(3) of
the Federal Rules of Civil Procedure and 28 U.S.C. §
23, 2018, Wells commenced this action by filing a motion for
leave to proceed in forma pauperis and a complaint.
In the complaint, Wells asserts that from 2014 to 2017,
defendant Turner, an officer at the Fluvanna Correctional
Center for Women, committed slander against Wells at
"the Department of Justice hearing in Washington
D.C." Compl. 3, Dkt. No. 2. The complaint details the
alleged slander by Turner. Id. at 3. Wells asserts
that this court has subject matter jurisdiction over her
claim based on federal question jurisdiction and that the
federal basis for the action is "First amendment rights
vs slander." Id. at 2. Wells seeks $800, 000.00
in damages. Id. at 5.
28 U.S.C. § 1915(e), which governs in forma
pauperis proceedings, the court has a mandatory duty to
screen initial filings. Eriline Co. v. Johnson, 440
F.3d 648, 656-57 (4th Cir. 2006). Specifically, "a
district court must dismiss an action that the court finds to
be frivolous or malicious or that fails to state a
claim." Michau v. Charleston Cty, 434 F.3d 725,
728 (4th Cir. 2006) (citing 28 U.S.C. § 1915(e)(2)(B)).
pursuant to Rule 12(h)(3) of the Federal Rules of Civil
Procedure, the court "must dismiss" an action
"[i]f the court determines at any time that it lacks
subject-matter jurisdiction." Fed.R.Civ.P. 12(h)(3).
"[Q]uestions of subject-matter jurisdiction may be
raised at any point during the proceedings and may (or, more
precisely, must) be raised sua sponte by the
court." Brickwood Contractors. Inc. v. Datanet
Ene'g. Inc., 369 F.3d 385, 390 (4th Cir. 2004).
courts have limited jurisdiction and "possess only that
power authorized by Constitution and statute."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Generally, federal district courts are
authorized to hear cases arising out of federal law or
involving diverse parties and a specified amount in
controversy. 28 U.S.C. §§ 1331, 1332. "Under
the well-pleaded complaint rule, a suit arises under federal
law . . . only when the plaintiffs statement of his own cause
of action shows that it is based upon federal law."
Vaden v. Discover Bank. 556 U.S. 49, 60 (2009)
(alterations and internal quotation marks omitted).
"Federal jurisdiction cannot be predicated on an actual
or anticipated defense." Id.
reviewed the complaint, the court is constrained to conclude
that it must be dismissed for lack of subject matter
jurisdiction. The plaintiff has failed to allege any
violation of federal law which might support federal question
jurisdiction under 28 U.S.C. § 1331, and the court is
unable to make any inference as to a possible violation of
federal law based upon the language of the complaint. See 28
U.S.C. § 1331 (limiting jurisdiction to claims
"arising under the Constitution, laws or treaties of the
United States"). Although Wells cites the First
Amendment in her complaint, it is clear from her description
of the claim that she is alleging slander without any
attendant violation of her constitutional rights. Even if
Wells anticipates that Turner will raise the defense of First
Amendment protected speech, the complaint does not arise
under the First Amendment, but under the law of slander, and
the well-pleaded complaint rule does not permit a plaintiff
to establish subject matter jurisdiction by asserting
anticipated defenses. Vaden, 556 U.S. at 60. Thus,
Wells has not established federal question jurisdiction. Nor
has Wells demonstrated complete diversity of citizenship
between the parties as required for diversity jurisdiction
under 28 U.S.C. § 1332. To the contrary, the complaint
indicates that the plaintiff and the defendant both reside in
Virginia. Because both federal question and diversity
jurisdiction are lacking, the complaint will be dismissed
under Rule 12(h)(3) and 28 U.S.C. § 1915(e)(2)(B).
reasons stated, the court grants the plaintiffs motion for
leave to proceed in forma pauperis and dismisses the
complaint without prejudice pursuant to Rule 12(h)(3) and 28
U.S.C. § 1915(e)(2)(B). The Clerk is directed to send