Cunningham v. United States of America

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RICARDO ALPHONSO CUNNINGHAM, MEMORANDUM AND ORDER

18-CV-4492 (KAM)

Plaintiff,

-against-

UNITED STATES OF AMERICA;

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

On August 7, 2018, plaintiff Ricardo Alphonso

Cunningham (“plaintiff”), appearing pro se, filed the instant

action against the United States of America and the United

States Citizenship and Immigration Services (“USCIS”). Plaintiff

asserts a litany of allegations against Defendants, including

claims under 18 U.S.C. §§ 241, 242; 42 U.S.C. §§ 1983, 1985,

1986; the First Amendment; the Fourth Amendment; the Fifth

Amendment; the Ninth Amendment; the Thirteenth Amendment; the

Fourteenth Amendment; and child trafficking laws. Plaintiff’s

request to proceed in forma pauperis is granted. For the reasons

discussed below, the complaint is dismissed for lack of subject

matter jurisdiction.

BACKGROUND

Plaintiff’s claims are unclear. Upon a liberal reading

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of the complaint, the court determines that Plaintiff disagrees

with the immigration policies of the United States, including

the policy of separating children from their families. Plaintiff

does not allege that he or any members of his family have been

personally affected by the United States immigration policies.

In addition, Plaintiff accuses the President of the United

States and other leaders of “spewing hate speech.” (Complaint

(“Compl.”), ECF No. 1 at 7.) Plaintiff seeks monetary damages

for every “victim” and seeks revision of the immigration laws.

(Id. at 8.)

LEGAL STANDARD

A complaint must plead “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 is plausible "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). Where, as here, the plaintiff is proceeding pro se,

courts must construe the plaintiff's pleadings liberally. See,

e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191(2d

Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.

2004). However, a pro se complaint must still state a claim to

relief that is plausible on its face. Mancuso v. Hynes, 379 F.

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App'x 60, 61 (2d Cir. 2010).

Importantly, where the plaintiff is proceeding in

forma pauperis, the district court must screen the complaint and

dismiss any action that "(i) is frivolous or malicious; (ii)

fails to state a claim on which relief may be granted; or (iii)

seeks monetary relief against a defendant who is immune from

such relief." 28 U.S.C. § 1915(e)(2)(B). An action is frivolous

when either: “(1) the factual contentions are clearly baseless,

such as when allegations are the product of delusion or fantasy;

or (2) the claim is based on an indisputably meritless legal

theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434,

437 (2d Cir. 1998) (internal citation omitted). In considering

whether to dismiss a complaint, the court accepts as true all

factual allegations it contains. Iqbal, 556 U.S. at 678.

Furthermore, "subject-matter jurisdiction, because it

involves the court's power to hear a case, can never be

forfeited or waived." United States v. Cotton, 535 U.S. 625, 630

(2002). Thus, federal courts “have an independent obligation to

determine whether subject-matter jurisdiction exists, even in

the absence of a challenge from any party." Arbaugh v. Y & H

Corp., 546 U.S. 500, 514 (2006). "When a federal court concludes

that it lacks subject-matter jurisdiction, the court must

dismiss the complaint in its entirety." Id.; see also Fed. R.

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Civ. P. 12(h)(3).

DISCUSSION

In order to bring an action in a federal court,

Plaintiff must establish that he has standing to pursue his

claims under Article III of the United States Constitution. E.M.

v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 449 (2d Cir. 2014). “To

establish that a case or controversy exists so as to confer

standing under Article III, a plaintiff must satisfy three

elements: (a) the plaintiff must suffer an ‘injury in fact,’ (b)

that injury must be ‘fairly traceable’ to the challenged action,

and (c) the injury must be likely to be ‘redressed by a

favorable decision’ of the federal court.” Natural Res. Def.

Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d 71, 79 (2d

Cir. 2013) (citations omitted); see also Hollingsworth v. Perry,

570 U.S. 693, 704, 133 S.Ct. 2652, 2661 (2013) (“[F]or a federal

court to have authority under the Constitution to settle a

dispute, the party before it must seek a remedy for a personal

and tangible harm.”). Moreover, a plaintiff must show that he

was personally deprived of rights or privileges guaranteed by

the United States Constitution. See Collins v. W. Hartford

Police Dep’t, 324 F. App’x 137, 139 (2d Cir. 2009). Here, to the

extent that any constitutional deprivation occurred, the injury

is to the individuals who are affected by the United States

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immigration policies, not to plaintiff who has not alleged facts

as to how he is affected by the government’s alleged actions.

See e.g., Guichardo v. Hanson, No. 15-cv-0585, 2015 WL 6866308,

at *3 (E.D.N.Y. Nov. 6, 2015) (grandmother, grandfather, and

mother lacked standing where the complaint related to the harm

allegedly suffered by their adult son).

CONCLUSION

Accordingly, the complaint filed in forma pauperis is

dismissed without prejudice for lack of subject matter

jurisdiction due to plaintiff's lack of standing. See 28 U.S.C.

§ 1915(e)(2)(B); Fed. R. Civ. P. 12(h)(3); Carter v. HealthPort

Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016) (where a complaint

is dismissed for lack of Article III standing, the dismissal

must be without prejudice, rather than with prejudice).

“A pro se complaint is to be read liberally, and

should not be dismissed without granting leave to amend at least

once when a liberal reading of the complaint gives any

indication that a valid claim might be stated.” Shomo v. City of

New York, 579 F.3d 176, 183 (2d Cir. 2009)(cleaned up)(internal

citations omitted). Here, even a liberal reading of plaintiff’s

complaint offers no indication that plaintiff can sustain a

valid claim, as he has not alleged facts as to how he is

affected by the government’s alleged actions. Therefore, leave

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to amend the complaint is denied.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal would not be taken in good faith and therefore

in forma pauperis status is denied for the purpose of any

appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

The Clerk of Court is respectfully directed to enter

judgment without prejudice and mail a copy of this Memorandum

and Order to plaintiff, and to close the case.

SO ORDERED.

Dated: November 19, 2020

Brooklyn, New York

_________/s/________________

KIYO A. MATSUMOTO

United States District Judge

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