Kaba v. Hope Home Care

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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AISHA O. KABA,

Plaintiff,

MEMORANDUM & ORDER

-against- 22-CV-6384 (OEM) (LB)

HOPE HOME CARE,

Defendant.

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ORELIA E. MERCHANT, United States District Judge:

Plaintiff Aisha O. Kaba (“Kaba” or “Plaintiff”) brings this pro se action against Defendant

Hope Home Care (“HHC” or “Defendant”) alleging she was unfairly suspended from her job and

that she suffered injuries while at her job. For the reasons that follow, Plaintiff’s request to proceed

in forma pauperis is granted. However, the complaint is dismissed for lack of subject matter

jurisdiction.

BACKGROUND

Plaintiff filed this action and a motion for leave to proceed in forma pauperis on October

18, 2022. ECF 1 (“Complaint”) at 2. Plaintiff’s complaint states that she is a resident of Staten

Island, New York. Id. It also alleges that her employer, HHC, is a corporation also located in and

having a principal place of business on Staten Island. Id. at 2, 5. Plaintiff invokes both the Court’s

federal question jurisdiction and diversity jurisdiction. Id. at 4.

Substantively, Kaba raises two grievances. First, Kaba claims she “suffered severe pain

and suffering from a broken toe injur[y] while working at” a client’s residence in September 2022.

Id. at 4-5. She alleges that she went to the hospital for medical treatment but that the hospital did

not take her insurance. Id. Additionally, she alleges that this injury was sustained due to a “neglect

and lack of care” on the part of HHC. Id. (alleging that HHC “did not show reasonable care.”).

Second, Kaba alleges that she was suspended from her job “for two weeks without pay for not

wearing a face mask after the injuries” despite being vaccinated. Id. Kaba requests monetary

compensation both for her physical pain and suffering as well as for her suspension. Id. at 6.

STANDARD OF REVIEW

28 U.S.C. § 1915 allows a litigant to pursue a claim in federal court “without prepayment

of fees or security” so long as they “submit[] an affidavit” that establishes “that the person is unable

to pay such fees.” 28 U.S.C. . § 1915(a).1 However, in exchange for the privilege of maintaining

an action without payment and to avoid abuse of the judicial system, § 1915(e) provides a

mechanism for the Court to initially review the complaint prior to the issuance of summons and

the commencement of the adversarial process. See Potnick v. E. State Hosp., 701 F.2d 243, 244

(2d Cir. 1983) (per curiam) (“[W]e are not unmindful of the mounting concern over the ever-

increasing caseload burdening the federal courts, and the growing view that judges must be alert

to prevent the dissipation of limited judicial resources on claims that are frivolous or are brought

in bad faith.”).

Thus, the Court’s duty at this stage involves two “distinct” tasks: (1) reviewing the

plaintiff’s affidavit and assessing their inability to pay the filing fee,2 and (2) reviewing the

complaint on the merits. See id. (“The statutory scheme recognizes, however, that whether a

plaintiff qualifies for in forma pauperis status and whether his claims have merit present two

distinct issues.”).

1 28 U.S.C. § 1915 also contains additional requirements and provisions for incarcerated litigants seeking in forma

pauperis status which do not apply here. See, e.g., id. at (a)(2), (b); § 1915A.

2 As of the date of this order, the current filing fee for civil cases in this district is $402.00. See Court Fees, Eastern

District of New York, available at https://perma.cc/9Z9L-TNZG.

As to whether Plaintiff qualifies for in forma pauperis status, that “decision . . . is left to

the District Court’s discretion[.]” Fridman v. City of New York, 195 F. Supp. 2d 534, 536

(S.D.N.Y. 2002). “The Supreme Court has long held that ‘an affidavit is sufficient which states

that one cannot because of his poverty pay or give security for the costs [inherent in litigation] and

still be able to provide himself and dependents with the necessities of life.’” Brooks v. Aiden 0821

Cap. LLC, No. 19-CV-6823 (GRB)(AYS), 2020 WL 4614323, at *5 (E.D.N.Y. July 22, 2020)

(quoting Adkins v. E.I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948)) (internal quotation

marks omitted). “Section 1915(a) does not require a litigant to demonstrate absolute destitution;

no party must be made to choose between abandoning a potentially meritorious claim or foregoing

the necessities of life.” Potnick, 701 F.2d at 244.

At the initial review of the complaint, a district court “shall” dismiss an in forma pauperis

action when 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. § 1915(e)(2)(B). In practice, “[t]he standard for dismissal of an action or appeal taken in

forma pauperis is identical to the standard for dismissal on a motion made pursuant to Fed. R. Civ.

P. 12(b)(6).” Fridman, 195 F. Supp. 2d at 538. That is, the complaint must survive the Iqbal-

Twombly pleading standard and “must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“It is well established that the submissions of a pro se litigant must be construed liberally

and interpreted ‘to raise the strongest arguments that they suggest.’” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (cleaned up); Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(A “pro se complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyer”). Nonetheless, a pro se plaintiff must “still comply with the

relevant rules of procedural and substantive law, including establishing that the court has subject

matter jurisdiction over the action.” Ally v. Sukkar, 128 F. App’x 194, 195 (2d Cir. 2005).

DISCUSSION

I. Motion to Proceed In Forma Pauperis

Upon review of Plaintiff’s affidavit in support of the application to proceed in forma

pauperis, see ECF 2, the Court finds that Plaintiff is qualified by her financial status to commence

this action without the prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1). Accordingly,

Plaintiff’s application to proceed in forma pauperis is granted.

II. Review of the Complaint under 28 U.S.C. § 1915(e)

“[F]ederal courts have an independent obligation to ensure that they do not exceed the

scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that

the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562

U.S. 428, 434 (2011). “The party invoking federal jurisdiction bears the burden of establishing

that jurisdiction exists.” Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009) (quoting Sharkey

v. Quarantillo, 541 F.3d 75, 82 (2d Cir. 2008)). If subject matter jurisdiction is absent, the district

court must dismiss the complaint regardless of the merits of the underlying action. See Nowak v.

Ironworkers Local 6 Pension Fund, 81 F. 3d 1182, 1188 (2d Cir. 1996); see also Arbaugh v. Y &

H Corp., 546 U.S. 500, 514 (2006).

As an initial matter, Plaintiff cannot establish diversity jurisdiction under 28 U.S.C. § 1332

because, as plead, the Plaintiff and Defendant are both citizens of New York; thus, there is no

complete diversity between the parties. See Complaint at 2; Wisconsin Dep’t of Corr. v. Schacht,

524 U.S. 381, 388 (1998) (“A case falls within the federal district court’s [] diversity jurisdiction

only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and

no defendant who are citizens of the same state.”) (internal quotation marks omitted). Moreover,

Plaintiff’s complaint contains no allegation of an amount-in-controversy exceeding $75,000.

28 U.S.C. § 1332(a). See Arbaugh, 546 U.S. at 514 (explaining that the “amount-in-controversy

threshold [is] an ingredient of [§ 1332] subject-matter jurisdiction”). Therefore, for her claims to

proceed Plaintiff must establish that this Court has jurisdiction “arising under the Constitution,

laws or treaties of the United States.” 28 U.S.C. § 1331.

A. Negligence Claims

Kaba’s complaint alleges physical injuries caused by her employer’s negligence and which

occurred during her employment. See Complaint at 5 (alleging Plaintiff “was injured on the job”

at a client’s home due to “neglect and lack of care . . . while on duty for Hope Home Care”).

Assuming arguendo that defendant HHC is a covered “employer” under New York’s Worker’s

Compensation Law, see N.Y. Workers’ Comp. Law § 2(3), Kaba’s claims in federal court are

barred by that same statutory scheme.

“As a general rule, when an employee is injured in the course of his employment, his sole

remedy against his employer lies in his entitlement to recovery under the [New York] Workers’

Compensation Law.” Timperio v. Bronx-Lebanon Hosp. Ctr., 384 F. Supp. 3d 425, 431 (S.D.N.Y.

2019) (quoting Billy v. Consol. Mach. Tool Corp., 51 N.Y.2d 152, 156 (N.Y. 1980) (internal

quotation marks omitted). See N.Y. Workers’ Comp. Law § 10, 11, 29(6). Specifically, Section

11 establishes that the “the Workers’ Compensation Board has exclusive jurisdiction to hear and

determine plaintiff’s claim for workers’ compensation benefits.” Horsham v. Fresh Direct, 136

F. Supp. 3d 253, 265 (E.D.N.Y. 2015) (citation omitted) (collecting cases). Consequently, “an

injured party who receives workers’ compensation cannot sue the employer ... whose negligence

caused his injuries.” Isabella v. Koubek, 733 F.3d 384, 388 (2d Cir. 2014) (citing N.Y. Workers’

Comp. Law §§ 11, 29(6)); see Weiner v. City of New York, 84 A.D.3d 140, 143 (N.Y. App. Div.

2011), aff’d, 19 N.Y.3d 852, 970 (2012) (“A cornerstone of the workers’ compensation framework

is a tradeoff: the employee is afforded swift and sure compensation and the employer is assured

that its workers’ compensation liability to its employee ‘shall be exclusive and in place of any

other liability whatsoever.’” (quoting N.Y. Workers’ Comp. Law § 11, 29(6)) (additional citations

omitted)); Sims v. New York City Dep’t of Parks & Recreation, No. 08 CIV. 5741(JSR), 2010 WL

46370 at *3 (S.D.N.Y. Jan. 6, 2010) (“There is no subject matter jurisdiction for Plaintiff’s

‘remaining workers’ comp discrimination claims, because such claims fall within the exclusive

jurisdiction of the New York Workers’ Compensation Law”) (cleaned up).

Here, because Kaba alleges that her injury occurred because of, and in the course of, her

employment, her exclusive remedy is through the New York workers’ compensation system,

which is administered by the Workers’ Compensation Board. Further, even if the Worker’s

Compensation Law was inapplicable here and Kaba could establish some other source of

jurisdiction, Kaba’s complaint still fails to state a claim that HHC is liable for negligence for

injuries she “sustained at [a] client’s house.” Complaint at 5. That is, there is no “factual content”

in her sparse complaint “that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citation omitted).

Accordingly, these claims are dismissed.

B. Adverse Employment Actions

Kaba also alleges that she was suspended for two weeks without pay by HHC (a private

corporation) for not wearing a mask at work. See Compl at 5. Construed most generously, Kaba

may be alleging a discriminatory or retaliatory employment practice in violation of Title VII of

the Civil Rights Act. See 42 U.S.C. § 2000e et seq. But, even construed most generously in

Kaba’s favor, the complaint is devoid of any allegations that can support a Title VII claim, and

consequently she fails to invoke this Court’s jurisdiction. Under Title VII, it is “an unlawful

employment practice for an employer ... to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual's race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). However, here there is no

allegation that HHC’s decision to suspend Kaba was in connection with any of these protected

characteristics or classes—rather, Kaba’s suspension was predicated on her refusal to wear a mask

at work.3 See Klaassen v. Trustees of Indiana Univ., 7 F.4th 592, 593 (7th Cir. 2021) (noting that

having to wear masks and be tested as a condition of attending college are “requirements that are

not constitutionally problematic”); accord Strong v. Zucker, 582 F. Supp. 3d 65, 72 (W.D.N.Y.

2022).

Thus, the Court concludes that Plaintiff has failed to allege sufficient facts to establish

§ 1331 jurisdiction for this claim. Accordingly, Kaba’s claims related to her suspension are also

dismissed.

CONCLUSION

For these reasons, Plaintiff’s complaint is dismissed without prejudice for lack of subject

matter jurisdiction. See Fed. R. Civ. P. 12(h)(3); St. Pierre v. Dyer, 208 F.3d 394, 400 (2d Cir.

2000) (“dismissal for lack of subject matter jurisdiction is not an adjudication of the merits, and

hence has no res judicata effect.”). The Clerk of Court is directed to enter judgment and close this

case.

3 As the Court finds there is no basis for arising under jurisdiction, there is no need for the Court to inquire as to

whether the plaintiff may have a claim under New York City Human Rights Law. See Nowak v. Ironworkers Loc. 6

Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996) (“[S]ince a court must have original jurisdiction in order to exercise

supplemental jurisdiction, a dismissal pursuant to Rule 12(b)(1) precludes a district court from exercising

supplemental jurisdiction over related state claims.”).

In light of its duty to liberally construe pro se complaints, the Court has considered whether

to grant Plaintiff leave to amend her complaint but finds that amendment would be futile. See

Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 124–25 (2d Cir. 2011). 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 purpose of an appeal. Coppedge v. United States, 369 U.S.

438, 444-45 (1962).

SO ORDERED.

____/s_/_ O__r_e_li_a_ E__ M__e_r_c_h_a_n_t

ORELIA E. MERCHANT

United States District Judge

August 25, 2023

Brooklyn, New York