Moore v. Brooklyn Hospital Center

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMES MOORE; ANDREW L. BROWN,

Plaintiffs, MEMORANDUM AND ORDER

22-CV-04208 (KAM)

-against-

BROOKLYN HOSPITAL CENTER;

WYCKOFF HEIGHTS MED. CENTER,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge.

On July 15, 2022, pro se Plaintiffs James Moore and

Andrew L. Brown (“Plaintiffs”) filed this in forma pauperis

(“IFP”) action asserting federal-question jurisdiction, and

seeking damages against defendants for medical malpractice and

negligence against Defendants Brooklyn Hospital Center and

Wykoff Heights Medical Center (“Defendants”).1 For the reasons

set forth below, Plaintiffs’ requests to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915 are GRANTED, and the

action is DISMISSED without prejudice for lack of subject matter

jurisdiction.

1 The 90–day period for service of process on Defendants set forth in Federal

Rule of Civil Procedure 4(m) expired on October 13, 2022, and Defendants have

not been served. Failure to serve process within 90 days provides authority

for the Court to dismiss the case. Fed. R. Civ. P. 4(m) (“If a defendant is

not served within 90 days after the complaint is filed, the court—on motion

or on its own after notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be made within a

specified time.”) The Court, however, considers Plaintiff’s Complaint on the

merits.

Background

The following facts are taken from the Complaint, the

allegations of which are assumed to be true for purposes of this

Memorandum and Order. On June 20, 2022, Plaintiff James Moore,

the father of co-plaintiff Andrew Brown, was admitted to

Brooklyn Hospital and discharged on June 22, 2022. (ECF No. 1,

Complaint at 5.) On June 24, 2022, following a medical incident,

Moore was taken to Wycoff Heights Medical Center and discharged

that day. (Id.) Following his discharge, Moore fell, was

readmitted, and a pacemaker was implanted. (Id.) Plaintiffs now

request monetary damages of $50,000 from Defendants.

Standard of Review

A district court shall dismiss an in forma pauperis

action where the action “(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. § l915(e)(2)(B).

Although courts must read pro se complaints with

“special solicitude” and interpret them to raise the “strongest

arguments that they suggest,” Triestman v. Federal Bureau of

Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006) (internal

quotations omitted), 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 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) (citation omitted). Although “detailed factual

allegations” are not required, “[a] pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.’” Id. (quoting Twombly, 550 U.S.

at 555). Similarly, a complaint is insufficient to state a

claim “if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

In reviewing a pro se complaint, the Court must be

mindful that Plaintiff’s pleadings should be held “to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Harris v.

Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after

Twombly, courts “remain obligated to construe a pro se complaint

liberally.”).

Discussion

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); see also Cortlandt St. Recovery Corp.

v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416–17 (2d Cir.

2015) (holding that a district court may dismiss an action for

lack of subject matter jurisdiction pursuant to Rule 12(b)(1)

when the court “lacks the statutory or constitutional power to

adjudicate it.” (quoting Makarova v. United States, 201 F.3d

110, 113 (2d Cir. 2000))).

According to the Complaint, the basis for subject

matter jurisdiction is federal question jurisdiction, which

provides federal courts jurisdiction over “all civil actions

arising under the Constitution, laws, or treaties of the United

States.” (ECF No. 1, Complaint at 4.) Bounds v. Pine Belt

Mental Health Care Res., 593 F.3d 209, 215 (2d Cir. 2010)

(quoting 28 U.S.C. § 1331). A case properly invokes federal

question jurisdiction when federal law creates the plaintiff’s

cause of action or when “the well-pleaded complaint necessarily

depends on resolution of a substantial question of federal law.”

Bracey v. Bd of Educ. of City of Bridgeport, 368 F.3d 108, 113

(2d Cir. 2004) (internal quotation marks and citation omitted).

Construing Plaintiffs’ allegations to “raise the

strongest arguments they suggest,” McLeod v. Jewish Guild for

the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v.

United States, 478 F.3d 489, 491 (2d Cir. 2007)), the Complaint

does not suggest any basis for the exercise of subject matter

jurisdiction. Plaintiffs’ claims do not arise under the

Constitution or any federal laws. See 28 U.S.C. § 1331.

Plaintiffs’ claims for negligence and medical malpractice arise

under state law, not federal law. See, e.g., Reyes v. New York

Presbyterian Hosp., No. 20-CV-3046, 2020 WL 6161261, at *2

(E.D.N.Y. Oct. 21, 2020); Panchitkhaew v. Long Island Jewish

Med. Ctr., No. 18-CV-4434, 2019 WL 1492780, at *3 (E.D.N.Y. Apr.

4, 2019) (noting that medical malpractice and negligence are

state law claims). Because the Court does not have federal-

question jurisdiction, the Court can not adjudicate this claim,

unless it has diversity jurisdiction.

Under the diversity statute, federal courts have

subject matter jurisdiction over claims when the plaintiff and

defendants are of diverse citizenship and “the matter in

controversy exceeds the sum or value of $75,000, exclusive of

interest and costs.” 28 U.S.C. § 1332(a); see also Bayerische

Landesbank, N. Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d

42, 48 (2d Cir. 2012). The party asserting diversity

jurisdiction bears the burden of proving that it exists by a

preponderance of the evidence. Aurecchione v. Schoolman Transp.

Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005); Finnegan v. Long

Island Power Auth., No. 17-CV-4424, 2019 WL 4467559, at *3

(E.D.N.Y. Sept. 18, 2019). Because all parties to the action

are citizens of New York, diversity of citizenship is lacking,

and the requirements of 28 U.S.C. § 1332 are not met. See,

e.g., Nimham-El-Dey v. Health and Hosps., No. 21-CV-8238, 2021

WL 5166385, at *4 (S.D.N.Y. Nov. 5, 2021) (noting that plaintiff

asserts state law claims of medical malpractice, but he does not

allege facts demonstrating that the Court has diversity

jurisdiction to consider those claims). In the absence of a

basis to support this Court's subject matter jurisdiction,

Plaintiffs’ complaint must be dismissed. See 28 U.S.C. §

1915(e)(2)(B)(ii); Fed. R. Civ P. 12 (h)(3).

Plaintiffs’ claims are dismissed without prejudice and

they may pursue any valid claims they may have against the

Defendants in state court.

Plaintiff may also seek assistance from The Federal

Pro Se Legal Assistance Project, a free, limited-scope legal

assistance clinic operated by the City Bar Justice Center of the

New York City Bar Association. The website is:

https://www.citybarjusticecenter.org/projects/federal-pro-se-

legal-assistance-project/ and the free hotline phone number is:

212-626-7383.

Conclusion

For the reasons set forth above, Plaintiffs’

complaint, filed in forma pauperis, is dismissed without

prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii) and Federal

Rule of Civil Procedure 12(h)(3).

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

that any appeal from this Order would not be taken in good faith

and therefore, in forma pauperis status is denied for the

purpose of any appeal. See Coppedge v. United States, 369 U.S.

438, 444-45 (1962). The Clerk of Court is respectfully directed

to enter judgment in favor of Defendants, serve a copy of this

memorandum and order and the judgment on Plaintiff, note service

on the docket, and close this case.

SO ORDERED.

DATED: November 8, 2022

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge