# Moore v. Brooklyn Hospital Center

> District Court, E.D. New York · November 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10308818

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308818

## How later opinions describe it (automated extraction)

- 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))
- noting that even after Twombly, courts “remain obligated to construe a pro se complaint liberally.”
- noting that even after Twombly, courts “remain obligated to construe a pro se complaint liberally.”
- noting that even after Twombly, courts “remain obligated to construe a pro se complaint liberally.”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------x
JAMES MOORE; ANDREW L. BROWN,

Plaintiffs, MEMORANDUM AND ORDER
22-CV-04208 (KAM)
-against-

BROOKLYN HOSPITAL CENTER;
WYCKOFF HEIGHTS MED. CENTER,

Defendants.
------------------------------x

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308818. Public record. Not legal advice.