United States District Court, D. Maryland
Frederick Motz United States District Judge.
Tootle, a resident of Hanover, Maryland, seeks money damages
and alleges that Dr. Nia Banks, a plastic surgeon at the
Beaux Art Institute of Plastic Surgery in Lanham, Maryland,
committed medical malpractice during surgery performed on
June 28 and August 13, 2012. Tootle's motion seeking in
forma pauperis status (ECF 2) shall be granted. For reasons
noted herein, the complaint shall be dismissed without
prejudice for lack of federal or diversity jurisdiction.
to 28 U.S.C. § 1915, courts are required to screen a
plaintiffs complaint when in forma pauperis status has been
granted. See Michau v. Charleston Cnty., S.C., 434
F.3d 725, 727 (4th Cir. 2006) (applying 28 U.S.C. §
1915(e)(2)(B) to preliminary screen a non-prisoner
complaint); Troville v. Venz, 303 F.3d 1256, 1260
(11th Cir. 2002) (applying § 1915(e) to non- prisoner
actions); Evans v. Albaug, 2013 WL 5375781 (N. D.
W.Va. 2013) (28 U.S.C. § 1915(e) authorizes dismissal of
complaints filed in forma pauperis).
jurisdiction of the federal courts is limited, and the burden
of establishing subject matter jurisdiction rests on the
party invoking the jurisdiction of the court. See Adams
v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). There is
no presumption that jurisdiction is vested in the court.
See Pinkley, Inc. v. City of Frederick, 191 F.3d
394, 399 (4th Cir. 1999).
may consider subject matter jurisdiction as part of its
initial review of the Complaint. See Lovern v.
Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that
"[determining the question of subject matter
jurisdiction at the outset of the litigation is often the
most efficient procedure"). In general, if subject
matter jurisdiction is lacking, the action must be dismissed.
See Fed. R. Civ. P. 12(h)(3) ("If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.").
Consequently a federal court must determine with certainty
whether it has subject matter jurisdiction over a case
pending before it. If necessary, the court has an obligation
to consider its subject matter jurisdiction sua sponte.
See Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006).
"[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
Engineering, Inc., 369 F.3d 385, 390 (4th Cir. 2004).
Tootle's complaint is based on medical malpractice by a
' private Maryland physician, a state tort claim. There
is no jurisdictional basis to consider the complaint under
this court's 28 U.S.C. § 1331 jurisdiction.
federal court does not sit to review every claim related to
alleged tortious conduct involving non-federal parties. It
may, however, have authority to review such state-law claims
based on the court's diversity of citizenship
jurisdiction. Pursuant to 28 U.S.C. § 1332, diversity
jurisdiction exists when the parties are of diverse
citizenship and the amount in controversy exceeds $75, 000.
It is a firmly established general rule of the federal courts
that a plaintiffs diversity claim is the measure of the
amount in controversy and determines the question of
jurisdiction. See McDonald v. Patton, 240 F.2d 424,
425-26 (4th Cir. 1957). Tootle seeks sufficient damages and
satisfies the amount-in-controversy requirement. The named
defendants, however, are located in Maryland, where Tootle
also resides. Thus, the parties are not diverse.
this court were to assume that diversity jurisdiction
existed, Tootle's medical malpractice claim would be
subject to dismissal unless Tootle demonstrated that she had
first presented her medical malpractice claim to the Maryland
Health Claims Arbitration Board. See Md. Code Ann.,
Cts & Jud. Proc. §3-2A-04 et seq. Maryland
law requires a medical malpractice claim to be filed with the
Health Claims Arbitration Board as a condition precedent to
filing a malpractice or negligence suit. See Attorney
General v. Johnson, 385 A.2d 57 (Md. 1978). The
complaint does not indicate that the condition has been met.
reasons set out herein, the complaint shall be summarily
dismissed by separate order. Tootle remains free to bring her
claim in the appropriate state court.
 The Clerk shall amend the docket to
reflect Dr. Banks' full name and to list her as a
 It is unclear whether Tootle's
claim is timely. Maryland law provides a tiered limitations
period for medical malpractice claims. The limitations period
runs three years from the discovery of the injury or five
years from injury, whichever is earlier. See Md.
Code Ann. Cts. & Jud. Proc. § 5-109(a).
 Title 28 U.S.C. Section 1915(e)(2)(B)
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss the
case at any time if ...