The opinion
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
XUEJIE HE, et al.,
Plaintiffs, Civil Action No. 20-8545
v. OPINION & ORDER
UNITED STATES OF AMERICA, et al.,
Defendants.
John Michael Vazquez, U.S.D.J.
This matter comes before the Court on pro se Plaintiffs Xuejie He’s (“He”) and Heyangjing
Shi’s (“Shi”) “Motion for Joinder of Claims with Complaint for a Civil Cases Amended,” D.E. 12,
D.E. 12-1, along with a “Complaint for a Civil Case Amended,” D.E. 12-2 (“SAC”).1 For the
reasons discussed below, the Court DISMISSES Plaintiffs’ SAC pursuant to 28 U.S.C. §
1915(e)(2)(B).
When allowing a plaintiff to proceed in forma pauperis, a court must review the complaint
and dismiss the action if it determines that the action (i) is frivolous or malicious, (ii) fails to state
1 The Court previously dismissed Plaintiffs’ First Amended Complaint, D.E. 6 (“FAC”), in its
second Opinion in this matter, D.E. 7 (“Second Prior Opinion” or “2d Prior Op.”), and afforded
Plaintiffs an additional opportunity to amend their FAC. 2d Prior Op. at 3-9. The Court instructed
Plaintiffs to file a second amended complaint within 30 days of the Second Prior Opinion. 2d Prior
Op. at 9. Plaintiffs failed to comply, and the Court issued a Notice of Call for Dismissal Pursuant
to L. Civ. R. 41.1, returnable March 8, 2021. D.E. 11. Plaintiffs failed to respond by the return
date. However, on March 17, 2021, Plaintiff filed a “Motion for Joinder of Claims with Complaint
for a Civil Cases Amended,” D.E. 12, D.E. 12-1, along with a “Complaint for a Civil Case
Amended,” D.E. 12-2 (“SAC”), a “Motion for [sic] Revoke Notice of Call for Dismissal,” D.E.
12-3, and exhibits, D.E. 12-4, and D.E. 12-5. Although Plaintiffs’ filing was late, the Court will
review Plaintiffs’ SAC for plausibility.
a claim upon which relief may be granted, or (iii) seeks monetary relief against a defendant who is
immune. 28 U.S.C. § 1915(e)(2)(B). When considering dismissal under § 1915(e)(2)(B)(ii) for
failure to state a claim upon which relief can be granted, the Court must apply the same standard
of review as that for dismissing a complaint under Federal Rule of Civil Procedure 12(b)(6).
Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012).
To state a claim that survives a Rule 12(b)(6) motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does
not impose a probability requirement, it does require a pleading to show more than a sheer
possibility that a defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780,
786 (3d Cir. 2016) (internal quotations and citations omitted). As a result, a plaintiff must “allege
sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.”
Id. at 789. In other words, although a plaintiff need not plead detailed factual allegations, “a
plaintiff’s obligation to provide the grounds of [her] entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp., 550 U.S. at 555 (internal quotations omitted).
Moreover, because Plaintiffs are proceeding pro se, the Court construes the Complaint
liberally and holds it to a less stringent standard than papers filed by attorneys. Haines v. Kerner,
404 U.S. 519, 520 (1972). The Court, however, need not “credit a pro se plaintiff’s ‘bald
assertions’ or ‘legal conclusions.’” Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013)
(quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
I. BACKGROUND
Because the factual allegations in Plaintiffs’ SAC do not materially differ from those in the
previous two complaints, the Court incorporates the extensive factual background provided in its
Prior Opinion, D.E. 2 (“Prior Opinion” or “Prior Op.”) and Second Prior Opinion, D.E. 7, here.
Previously, the Court dismissed the Plaintiffs’ initial Complaint, D.E. 1, for lack of subject-matter
jurisdiction. Prior Op. at 5-7. The Court found both federal and diversity jurisdiction lacking but
permitted Plaintiffs an opportunity to amend the Complaint to cure the deficiencies identified in
the Prior Opinion. Id. at 7. Plaintiff filed a First Amended Complaint, D.E. 6 (“FAC”), which the
Court dismissed for similar reasons in its Second Prior Opinion, D.E. 7.
II. ANALYSIS
As an initial matter, “[a] federal court is bound to consider its own jurisdiction preliminary
to consideration of the merits.” Kaplan v. Garrison, No. 15-1915, 2015 WL 2159827, at *2 (D.N.J.
May 6, 2015) (quoting Trent Realty Assocs. v. First Fed. Sav. & Loan Ass’n of Phila., 657 F.2d
29, 36 (3d Cir. 1981)); Doughtery, Clifford & Wadsworth Corp. v. Magna Grp. Inc., No. 07-1068,
2007 WL 2300719, at *1 (D.N.J. Aug. 6, 2007) (explaining that a “[c]ourt has the ability and
obligation to address concerns of subject matter jurisdiction sua sponte”). If subject matter
jurisdiction is lacking, the Court must dismiss the action. Fed. R. Civ. P. 12(h)(3). Since Plaintiffs
are proceeding pro se, the Court construes their pleadings liberally and holds them to a less
stringent standard than those filed by attorneys. Haines v, 404 U.S. at 520. “The Court need not,
however, credit a pro se plaintiff’s ‘bald assertions’ or ‘legal conclusions.’” D’Agostino v.
CECOM RDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J. Sept. 10, 2010) (citing Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
“In order to establish a basis for subject matter jurisdiction in federal court, a plaintiff’s
claims must establish either federal question jurisdiction under 28 U.S.C. § 1331, or diversity
jurisdiction under 28 U.S.C. § 1332.” Gencarelli v. New Jersey Dep’t of Labor & Workforce Dev.,
No. 15-3405, 2015 WL 5455867, at *1 (D.N.J. Sept. 16, 2015) (citing Hines v. Irvington
Counseling Ctr., 933 F. Supp. 382, 387 (D.N.J. 1996)). The burden is on the plaintiff to prove that
the Court has jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000),
holding modified by Simon v. United States, 341 F.3d 193 (3d Cir. 2003).
Plaintiffs again fail to set forth facts to support either diversity jurisdiction or federal
question jurisdiction. To establish diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), “the
party asserting jurisdiction must show that there is complete diversity of citizenship among the
parties” as well as an amount in controversy exceeding the statutory threshold. Schneller ex rel
Schneller v. Crozer Chester Med. Ctr., 387 Fed. App’x 289, 292 (3d Cir. 2010). Here, again, both
Plaintiffs appear to be domiciled in New York, SAC at 1-2,2 and the SAC still includes many
Defendants who are citizens of New York, SAC at 2-17. Because the parties here are not
completely diverse, jurisdiction under 28 U.S.C. 1332(a)(2)3 is improper.
To establish federal question jurisdiction, a plaintiff must allege a “civil action[] arising
under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Aside from the
addition of four new factual allegations, SAC at 42, ¶¶ 186-89, the remaining allegations of the
2 Page numbers in the SAC are assigned based on the number generated by the Court’s electronic
filing system.
3 Plaintiffs again seek to establish diversity jurisdiction by alleging “[t]his case was between two
states of New Jersey and New York, [t]he Supreme Court of the United States has original
jurisdiction over this action[.]” SAC at 19, ¶ II.B(2); compare FAC at 18, ¶ II.B(2). As this Court
previously determined, this “allegation does not satisfy the requirements of diversity jurisdiction
as this case does not involve a controversy ‘between two or more States[.]’” 2d Prior Op at 4, n.
1.
SAC are identical to those in the FAC.4 The new factual allegations – concerning Defendant Cho’s
smearing of “poo” and Plaintiff He’s contraction of COVID-19 at the hands of Defendants – do
no alter this Court’s conclusions as to Plaintiffs’ previously stated federal claims. Accordingly,
Plaintiffs’ claims under (1) the Equal Protection Clause; (2) the “Racial Discrimination Act of
1975”; (3) the Attorney General Standards for Providing Services to Victims of Sexual Assault;
(4) 42 U.S.C. 1395dd(b)(1)(d)(2); and (5) 42 U.S.C. § 1866(a)(1)(N) are dismissed for the same
reasons as those identical claims were dismissed in the Court’s Second Prior Opinion. See 2d Prior
Op. at 5-8.
The only relevant addition to the SAC is Plaintiffs’ citation to 42 U.S.C. § 2000a(a)(b)(4),
a subsection of Title II of the Civil Rights Act of 1964 (“Title II”). 42 U.S.C. § 2000a(a) provides:
All persons shall be entitled to the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation, as defined
in this section, without discrimination or segregation on the ground
of race, color, religion, or national origin.
42 U.S.C. § 2000a(a). 42 U.S.C. § 2000a(b) provides:
Each of the following establishments which serves the public is a
place of public accommodation within the meaning of this
subchapter if its operations affect commerce, or if discrimination or
segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which
provides lodging to transient guests, other than an
establishment located within a building which contains not
more than five rooms for rent or hire and which is actually
occupied by the proprietor of such establishment as his
residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda
fountain, or other facility principally engaged in selling food
for consumption on the premises, including, but not limited
4 Plaintiff also added a few words in two paragraphs under the heading “Federal Question,” see
SAC at 18, ¶¶ II.A.(1), (3), and added a new paragraph discussing the procedural history of other
cases Plaintiffs filed, id. at 20. To the extent relevant, the new allegations are discussed herein.
to, any such facility located on the premises of any retail
establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports
arena, stadium or other place of exhibition or entertainment;
and
(4) any establishment (A)(i) which is physically located
within the premises of any establishment otherwise covered
by this subsection, or (ii) within the premises of which is
physically located any such covered establishment, and (B)
which holds itself out as serving patrons of such covered
establishment.
42 U.S.C. § 2000a(b)(1)-(4). 42 U.S.C. § 2000a-3 permits a person aggrieved by a violation of
Title II to file a private right of action. 42 U.S.C. § 2000a-3. To state a Title II claim, a plaintiff
must allege that they were denied full and equal enjoyment of the goods, services, facilities,
privileges, advantages, and accommodations of a place of public accommodation because of their
color, race, religion or national origin. Moncion v. City of New York NYPD, No. 20-CV-8974
(LTS), 2021 WL 2227240, at *3 (S.D.N.Y. June 1, 2021) (emphasis added).
Here, Plaintiffs fail to allege with clarity which of the named defendants discriminated
against them on the basis of their color, race, religion, or national origin. For that reason, the Court
finds the SAC is insufficiently pled. Moreover, even assuming Plaintiffs properly identified a
defendant for their Title II claim, the SAC is still deficient. Construing the SAC liberally, the only
factual allegation that could potentially fit within this cause of action is the claim that Plaintiff He
was granted a seven-day contract with New York City Rescue Mission (“NYC-RM”) that was
subsequently canceled. SAC ¶ 45-49. The SAC does not describe the nature of the contract nor
the alleged reasons for the cancelation. NYC-RM is described in the SAC as a “Corporation
Independent, Rescue Mission” located at “90 Lafayette St, New York, New York.” Id. at 6. This
cause of action fails for multiple reasons. First, Plaintiffs do not allege any facts that indicate
NYC-RM discriminated against either one of them because of their color, race, religion, or national
origin. Second, it is unclear whether NYC-RM qualifies as a “place of public accommodation.”
42 U.S.C. § 2000a(a). In addition, damages are not available under this statute. Roy v. U-Haul,
No. CIV. 14-2846 NLH/JS, 2015 WL 375664, at *3 (D.N.J. Jan. 28, 2015)(“[W]hen a plaintiff
brings an action under Title II, he cannot recover damages.” (Newman v. Piggie Park Enters., Inc.,
300 U.S. 400, 402 (1968)).5 Plaintiffs do not seek any relief besides monetary damages. Plaintiff’s
claim under Title II fails.
III. CONCLUSION
In sum, the Court dismisses Plaintiffs’ SAC in its entirety. This was Plaintiff’s third
opportunity to plead a satisfactory complaint. After two opinions providing Plaintiffs detailed
notice of the deficiencies in their pleadings, Plaintiffs have still failed to plead a plausible cause of
action. In addition, the factual allegations underling the SAC are nearly identical to those alleged
in the previous complaints. And Plaintiffs continue to assert causes of action that the Court
previously found implausible as a matter of law.6 As a result, the Court concludes that Plaintiffs
have not filed an adequate pleading because they are unable to do so. Thus, any future amendment
would be futile.
For the foregoing reasons, and for good cause shown,
5 The only relief pled in the SAC that could be construed as injunctive is Plaintiff’s prayer for the
Court to permit Plaintiffs to “gain legal status in the United States.” SAC at 42. However, the
Court cannot grant such relief.
6 For example, the SAC, again, attempts to assert a cause of action under the “Racial
Discrimination Act of 1975.” This Court has twice informed Plaintiff that this appears to be an
Australian statute which cannot confer federal question jurisdiction. See D.E. 2 at 6, n. 4 (“The
Racial Discrimination Act of 1975 cited by Plaintiffs appears to be an Australian anti-
discrimination statute and thus may not confer federal question jurisdiction.”); See 2d Prior Op at
5 (“For the same reasons as stated in the Court’s Prior Opinion, the Court finds that Plaintiffs have
not alleged . . . a claim under the ‘Racial Discrimination Act of 1975,’ which . . . appears to be an
Australian statute.”). Yet Plaintiff continues to assert this cause of action.
IT IS on the 2 day of August, 2021,
ORDERED that Plaintiffs’ SAC, D.E. 12-2, is DISMISSED; and it is further
ORDERED that the Clerk of the Court is directed to CLOSE this matter; and it is further
ORDERED that Plaintiffs are NOT GRATNED LEAVE to file an additional amended
pleading; and it is further
ORDERED that the Clerk shall serve this Order and Opinion upon Plaintiffs by regular
and certified mail.
Que VLE N \
Johia Michael Vazquez, U.'S.D.JV