# Cunningham v. United States of America

> District Court, E.D. New York · November 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10305220

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------x

RICARDO ALPHONSO CUNNINGHAM, MEMORANDUM AND ORDER
18-CV-4492 (KAM)
Plaintiff,

-against-

UNITED STATES OF AMERICA;
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,

Defendants.
-----------------------------x
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305220. Public record. Not legal advice.