The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PATRICIO R. MAMOT, :
:
Plaintiff, : MEMORANDUM & ORDER
: 21-CV-4732 (WFK) (LB)
v. :
:
WALGREENS PHARMACY, :
:
Defendant. :
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HON. WILLIAM F. KUNTZ, II, United States District Judge:
Patricio R. Mamot (“Plaintiff”) filed this pro se action on August 9, 2021 in the United
States District Court for the Southern District of New York. It was transferred to this Court on
August 23, 2021. See ECF No. 3. Plaintiff’s application to proceed in forma pauperis is
GRANTED for the limited purpose of this Order. The Complaint is hereby DISMISSED for
lack of subject matter jurisdiction.
BACKGROUND
The Complaint states: “Walgreens Pharmacy failed to develop sensitive pictures that
resulted in murder of my great grand nephew.” Compl., ECF No. 2, at 2.1 Plaintiff alleges that
he took photographs of a demonstration in front of the Philippine Consulate and United Nations
Headquarters in August 2017 and delivered the negatives to a Walgreens Pharmacy to be
developed. Id. at 9-10. Plaintiff states that the contract with Walgreens Pharmacy promised to
develop the film within one week, “Just in time before the visit of Pres. Trump” to the
Philippines. Id. at 10. Instead, the development took one month. Id.
Plaintiff filed a claim in Small Claims Court for breach of contract, and Walgreens
Pharmacy offered a settlement of $100.00. Id. at 10-11. “On September 25, 2017, the first day
1 As the pages of the Complaint, addenda, and attachments are not consecutively paginated, the Court refers to the
page numbers assigned by the Electronic Case Filing System (“ECF”).
of hearing before Judge Healy of Queens Small Claims Cour[t], my great grand nephew,
Alexander Mamot, 32, was gunned [down] in broad daylight.” Id. Plaintiff states: “this case
proved the admitted culpability of Walgreens Pharmacy. . . . The issue remaining is whether the
offered compensation of $100 plus developed time-sensitive pictures was reasonable. At the end
of the day, the question to be asked: Is it commensurate to the death of my greatgrandnephew,
Alaxander” [sic]. Id. at 11.
The complaint does not provide any other basis for the Court’s subject matter jurisdiction
or seek specific damages.
DISCUSSION
Courts are required to give special consideration to pro se litigants, those individuals who
are not attorneys and are representing themselves in court. This means that they are not expected
to meet the same standards required for formal pleadings drafted by lawyers. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). In giving pro se complaints special consideration, the Court
must look for the strongest arguments in the complaint. Id.; Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191-93 (2d Cir. 2008). If the Court finds any possibility that “a valid claim might
be stated,” the Court must give the plaintiff an opportunity to amend the complaint. Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
When a civil action is first filed, the Court must assume that all clearly stated facts (but
not the legal conclusions) in the complaint are true. Kiobel v. Royal Dutch Petroleum Co., 621
F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)). To avoid
dismissal, a complaint must include facts that show that the defendants may be responsible for
the harm to the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
A federal statute, 28 U.S.C. § 1915(e)(2)(B), allows plaintiffs who cannot afford to pay
the filing fee to file lawsuits without paying the fee. This statute requires a district court to
dismiss the case if the complaint “is frivolous or malicious; fails to state a claim on which relief
may be granted; or 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). “[A] finding of factual
frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts available to contradict them.”
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Moreover, a plaintiff seeking to bring a lawsuit in federal court must establish that the
court has subject matter jurisdiction over the action. The Federal Rules of Civil Procedure
require that if the court “determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed. R. Civ. P. 12(h)(3). There are two types of federal subject-matter
jurisdiction. One type is called federal question jurisdiction. In that type, the complaint must
have a claim based on a federal law. See 28 U.S.C. § 1331. The other type of federal subject-
matter jurisdiction is called diversity jurisdiction. In that type, the plaintiff must show that
plaintiff and defendants have complete diversity of citizenship, which means that all the
defendants must live in a different state than the plaintiff. Also, the claim for money damages,
which is called the amount in controversy, must be for more than $75,000.00. See 28 U.S.C. §
1332.
In this case, Plaintiff has not asserted any basis for this Court’s subject matter
jurisdiction. His only claim against the Defendant is that Walgreens Pharmacy breached a
contract by failing to develop his photographs within one week as promised. Breach of contract
is based on a state law and may be raised in state courts, and, indeed, plaintiff litigated this claim
in New York City’s Small Claims Court and was offered a settlement. Federal courts may not
decide issues of state law unless the federal court has diversity jurisdiction over the claim. In
this case, Plaintiff alleges that both he and the Defendant are residents of New York State. Even
if Defendant is not a resident of New York, the Court does not believe that Plaintiff can
reasonably recover damages in excess of the jurisdictional amount of $75,000.00 because
Walgreens failed to develop his photographs on time. Accordingly, this claim is DISMISSED
for lack of subject matter jurisdiction.
It appears that Plaintiff believes that Walgreens is somehow responsible for the shooting
death of his great-grandnephew, because the shooting happened on the same day that Plaintiff
appeared in Small Claims Court, in Queens, to litigate his claim about the delay in developing
his photographs. Although this is a sad coincidence, Plaintiff does not allege facts that credibly
connect these events. Any attempt Plaintiff does make to connect these two events is wholly
incredible. This claimed connection is DISMISSED as frivolous.
CONCLUSION
For the reasons stated above, the complaint is DISMISSED for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3) and as frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B)(i). 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).
SO ORDERED.
s/ WFK
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Dated: August 27, 2021 HON. WILLIAM F. KUNTZ, II
Brooklyn, New York UNITED STATES DISTRICT