# Neary v. Driscoll

> District Court, E.D. New York · April 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10311668

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 19, 2024
- **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/10311668

## How later opinions describe it (automated extraction)

- holding that a defendant who “was attempting to collect debts in the performance of his official duties as a state marshal” could not be sued under the FDCPA

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Brian James Neary,
Plaintiff,

-v-
2:24-cv-00736
Jeanine C. Driscoll, Receiver of Taxes, Town of (NJC) (ST)
Hempstead; David Y. Chiang, Treasurer, Nassau County;
Janet Goller, President, Bellmore/Merrick Central High
School District Board of Ed.; Maryanne Kelly, President,
Bellmore/Merrick District Board of Ed.,

Defendants.

MEMORANDUM AND ORDER
NUSRAT J. CHOUDHURY, United States District Judge:
Before the Court is the Amended Complaint filed by Brian James Neary (“Neary”),
acting pro se, against Jeanine C. Driscoll, Receiver of Taxes, Town of Hempstead; David Y.
Chiang, Treasurer, Nassau County; Janet Goller, President, Bellmore/Merrick Central High
School District Board of Education; and Maryanne Kelly, President, Bellmore/Merrick District
Board of Education (collectively, “Defendants”). (Am. Compl. ¶ I(B), ECF No. 8.) Also pending
is Neary’s motion to proceed in forma pauperis (“IFP”). (IFP Mot., ECF No. 2.) Upon review of
Neary’s submissions, the Court grants the IFP motion and dismisses the Amended Complaint
without prejudice as set forth below pursuant to Rule 12(h)(3) of the Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”).
BACKGROUND1
Neary commenced this action by filing a Complaint against the Defendants using the

1 Excerpts from the Amended Complaint are reproduced here exactly as they appear in the
Court’s general complaint form together with a motion to proceed IFP. (See Compl., ECF No. 1;
IFP Mot.)2 In accordance with Rule 15(a)(1) of the Federal Rules of Civil Procedure, Neary filed
an Amended Complaint as of right. (Am. Compl.)
In the Amended Complaint, Neary seeks to invoke this Court’s federal question subject
matter jurisdiction pursuant to 28 U.S.C. § 1331 and alleges that his claims against the
Defendants arise under: (1) “US Constitution: ‘Supremacy Clause’ Article VI, Clause 2. B.O.R.
14th Amendment; Sec. I 5th Amendment; ‘Due Process’ Clause;” (2) the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692; (3) the “Taxpayers Bill of Rights of the Consolidated
Appropriations Act 2016, Pub. Law No. 114-113, Division Q, Title IV § 401(a)(2015) (codified
at IRC § 7803(a)(3)): IR-2014-72, June 10, 2014, TBOR Number 10- ‘The Right to a Fair and
Just Tax System’”; and (4) “CFR § 301.6159-1; Agreements for payment of tax liabilities in
installments.” (Am. Compl. ¶ II at 3–4.) Neary seeks to challenge Defendants’ billing and tax
collection practices. (Id. at 6, 8–27.)
Neary’s “Statement of Claim” alleges that “[t]he illicit taxation collection policy and

subsequent residential property account invoicing procedures of the Nassau County Treasurer’s
Office and the Town of Hempstead Office of the Receiver of Taxes, for the procurement of
residential property and school taxes, is a premeditated violation of Federal Law . . . .” (Id. at 8.)
According to the Amended Complaint, the Defendants’ billing collections policy predominately
impacts Nassau County resident taxpayers who do not have outstanding mortgage loans on their

2 On March 12, 2024, Neary also filed a twenty-page “Statement of Facts” with exhibits, which
the Court returned to him on March 20, 2024 without docketing or consideration. See ECF No. 7,
7-1; see also Rule 7(a), Fed. R. of Civ. P. On March 25, 2024, Neary filed the Amended
Complaint, which includes a 20-page Statement of Claim with exhibits. (See Am. Compl.)

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property and “there is presently an enormous number of Nassau County residents who are
deliberately obligated to pay their school and property taxes upfront and in-full, while mortgage
holders are given preferential treatment; being permitted to make payments on a streamlined,
monthly basis.” (Id. at 9.) Thus, Neary claims that “[t]he Town of Hempstead Receiver of
Taxes[,] the Nassau County Treasurer, the two Bellmore/Merrick School District Boards of
Education along with numerous other district school-boards located within the environs of
Nassau County [are] [] deliberately perpetrating unreasonable, unlawful billing & collection
practices.” (Id. at 8.) Neary also alleges that “[t]he inflexible general property and school
taxation program prohibits challenging payment demands, while placing an unfair burden on
(non-mortgage holding) residents.” (Id. at 12 (emphasis in original).) Neary further claims that
because “the vast majority of the 136,000+ Nassau County residents without a mortgage are over
the age of 65, along with being categorized as low to moderate (LMI) households . . . ,
demanding full payment upfront is having a ‘Disparate Impact’ upon their financial well-being.”
(Id.)

Neary claims:
The Town of Hempstead/Nassau County invoice procedures are essentially a two-
tiered system based upon the totally different treatment that mortgage-holding
residents receive, in comparison to non-mortgage holding residents. The mortgage
holders are not being forced to pay lump-sum tax invoices upfront and “in-full”.
Rather, residents with mortgages are permitted to make monthly streamlined
payments, via their balanced-billing mortgage servicing; which is amortized
throughout the life of their lender’s installment debt instrument. In sharp contrast,
the rules imposed upon non-mortgage holder residents obligate them to make
payment in-advance for the scheduled period (e.g. page 2, Fig.1: The school tax
invoice encompasses the time period from Nov. 2023 to April 2024). This
constitutes ‘preferential treatment’, and is an obvious breach of the ‘Equal
Protections’ Clause.

(Id. at 14.)

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For relief, Neary is “demanding five specific components of ‘Relief’ . . . from the
Defendants”:
(a) Immediately CEASE the unfair taxation billing & collections practices
imposed upon Nassau County Residents[;]

(b) Provide all Nassau County resident taxpayers with a balanced-billing,
streamlined monthly payment plan option[;]

(c) Provide all Nassau County resident taxpayers with a monthly installment
payment plan for $$ delinquent accounts[;]

(d) REIMBURSE all affected taxpayers for accrued interest, penalties, and fees
paid on past-due amounts for the last 7 years because of the aberrant policy[;]

(e) Pay to the Plaintiff ‘Punitive Damages’ equal to the most recent residential
property valuation assessment for 2673 Fisher Ln. Bellmore, NY 11710-4629
multiplied by 7 (Property ID #SD-007, Sec. 63, Block 228 Lot 0012)[.]

(Id. at 16 (emphasis in original); see also id. at 9.)

LEGAL STANDARDS
I. In Forma Pauperis
Upon review of Neary’s IFP application (IFP App., ECF No. 2), the Court finds that he is
qualified by his financial status to commence this action without the prepayment of the filing fee.
Therefore, the application to proceed IFP is granted.
II. Sufficiency of the Pleadings
Under Section 1915 of Title 28, a district court must dismiss an IFP complaint or
amended complaint if the action 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)(i–iii). The court “shall” dismiss the action as soon as it makes
such a determination. Id. At the pleading stage, the court must assume the truth of “all well-

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pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d 111, 124 (2d Cir. 2010), aff’d., 569 U.S. 108 (2013) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678–80 (2009)). The court must construe the pleadings of a pro se plaintiff liberally.
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004).
Nevertheless, a complaint or amended complaint must plead sufficient 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.”
Iqbal, 556 U.S. at 679 (citations omitted). If a liberal reading of the complaint “gives any
indication that a valid claim might be stated,” the court must grant leave to amend the complaint.

See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). If, however, amendment of the
complaint would not cure the substantive defects of the claim, leave to amend should be denied.
Cuoco, 222 F.3d at 112. Indeed, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements . . . are not entitled to the assumption of truth.” Iqbal,
556 U.S. at 678 (citation omitted). While “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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). The factual
allegations of a complaint or amended complaint must be sufficient to give the defendant “fair
notice of what the . . . claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555

(quotation marks omitted). “[A] pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.” Ceara v. Deacon, 916 F.3d

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208, 213 (2d Cir. 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
DISCUSSION
I. Subject Matter Jurisdiction
A district court has the inherent power to dismiss a case, sua sponte, if it determines the
court lacks jurisdiction over the matter. Fed. R. Civ. P. 12(h)(3). Notwithstanding the liberal
pleading standard afforded pro se litigants, federal courts are courts of limited jurisdiction and
may not preside over cases if they lack subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”) (emphasis supplied); Do No Harm v. Pfizer Inc., 96 F.4th 106, 121 (2d Cir.
2024) (“Once a federal court determines it lacks subject matter jurisdiction, the court must
dismiss the complaint in its entirety.”). “A plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it exists.” Searles v. Robert, No. 21-
2836, 2023 WL 7271832, at *1 (2d Cir. Nov. 3, 2023) (quoting Makarova v. United States, 201

F.3d 110, 113 (2d Cir. 2000)). This Court has an “independent obligation to consider the
presence or absence of subject matter jurisdiction sua sponte.” In re Tronox Inc., 855 F.3d 84, 95
(2d Cir. 2017) (quoting Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) (quotation marks
omitted)).
Neary seeks to invoke this Court’s federal question subject matter jurisdiction pursuant to
28 U.S.C. § 1331. (See Am. Compl. ¶ II.) That statute provides that “district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. Neary alleges that his claims arise under federal law, namely
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, the Taxpayer’s Bill of Rights of the

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Consolidated Appropriations Act of 2016, and the United States Constitution. (Id.) However,
“[t]he Tax Injunction Act (‘TIA’) provides that ‘[t]he district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any tax under State law where a plain, speedy and
efficient remedy may be had in the courts of such State’” and divests this Court of subject matter
jurisdiction to adjudicate Neary’s claims. Greenberg v. Town of Scarsdale, 477 F. App’x 849,
850 (2d Cir. 2012) (affirming district court’s dismissal of a complaint challenging the assessment
of real property for the purpose of collecting taxes on that property finding “the district court was
correct in holding that the TIA and the principle of comity divested it of jurisdiction over the
instant action.”) (citing 28 U.S.C. § 1341). “This prohibition is jurisdictional and operates to strip
the federal courts from exercising subject matter jurisdiction over claims for both declaratory and
injunctive relief.” Nasca v. New York State Dep’t of Tax’n & Fin., No. 20-CV-243 (WFK) (LB),
2021 WL 1438301, at *3 (E.D.N.Y. Mar. 12, 2021) (citing Bernard v. Village of Spring Valley,
30 F.3d 294, 297 (2d Cir. 1994)); see also Pan v. City of Niagara Falls, Cnty. of Niagara, New
York, No. 20-CV-1896 (JLS), 2023 WL 3025149, at *3 (W.D.N.Y. Apr. 19, 2023) (“The Tax

Injunction Act prohibits federal courts from issuing injunctive or declaratory relief in challenges
to state tax laws if state remedies are adequate.”).
Here, Neary does not allege that he has pursued the issues raised in his Amended
Complaint in state court or that he has an inadequate remedy there. (See generally Am. Compl.)
“Both the United States Supreme Court and the Second Circuit have consistently found that New
York courts provide the ‘plain, speedy and efficient remedy’ contemplated by the TIA.” Nasca,
2021 WL 1438301 at *3 (citing Tully v. Griffin, Inc., 429 U.S. 68, 76–77 (1976); Abuzaid v.
Mattox, 726 F.3d 311, 316 (2d Cir. 2013)); see also Greenberg, 477 F. App’x at 850 (“[A]s

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correctly determined by the district court, available New York remedies provide an adequate
means for litigating all of [Plaintiff’s tax] assessment claims in a state forum.”) (citing Long
Island Lighting Co. v. Town of Brookhaven, 889 F.2d 428, 431 (2d Cir. 1989) (hereinafter
LILCO) (“[T]he Tax Injunction Act . . . prevents federal courts from giving injunctive relief or
declaratory relief, as long as there is a plain, speedy and efficient remedy in state court . . . .”
(citations omitted)).
Further, “[t]he comity doctrine is ‘more embracive’ than the TIA, and ‘restrains federal
courts from entertaining claims for relief that risk disrupting state tax administration,’ . . . ‘so
long as the plaintiffs have access to state remedies that are plain, adequate, and complete, and
may ultimately seek review of the state decisions in [the Supreme] Court.’” Nasca, 2021 WL
1438301 (quoting Abuzaid, 726 F.3d at 315); see also LILCO, 889 F.2d at 431 (“While it is the
[TIA] that prevents federal courts from giving injunctive relief . . . or declaratory relief . . . as
long as there is a plain, speedy and efficient remedy in state court, it is the principle of comity
that prevents a taxpayer from seeking damages in a § 1983 action if a plain, adequate, and

complete remedy may be had in state court.”); Rosa v. City of Syracuse, No. 5:16-CV-
1123(LEK)(TWD), 2017 WL 4326517, at *4 (N.D.N.Y. Sept. 28, 2017) (“[A]lthough the TIA
mentions only injunctions, its policy of comity bars declaratory judgment and 42 U.S.C. § 1983
damage actions as well.”) (citation omitted). Indeed, the Second Circuit “has held that, when the
administration of a state tax scheme is involved, . . . [claims arising therefrom] are not
cognizable in federal court.” Hoffer v. Ancel, 32 F. App’x 593, 597 (2d Cir. 2002) (citation
omitted). Thus, Neary’s claims are dismissed without prejudice pursuant to Rule 12(h)(3).

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II. Claims Brought Under the Taxpayer’s Bill of Rights
To the extent that Neary seeks to assert claims pursuant to the Taxpayer’s Bill of Rights
(“TPBR”), such claims are not plausible. It is well-established that the TPBR does not provide
for a cause of action. See United States v. Schwartz, 615 F. Supp. 3d 184, 190 (E.D.N.Y. 2022)
(“The Taxpayer Bill of Rights is merely an informational publication that groups the existing
rights in the tax code into ten fundamental rights, and makes them clear, understandable, and
accessible.”) (citation and quotation marks omitted) (quoting Taxpayer Bill of Rights, Taxpayer
Advocate Service, https://www.taxpayeradvocate.irs.gov/get-help/taxpayer-rights/ (last accessed
July 18, 2022)). The TPBR does not “grant new enforceable rights,” nor does it “confer any
individual cause of action”). Id. (citation and quotation marks omitted). Thus, even if this Court
had subject matter jurisdiction, Neary’s claims brought pursuant to the TPBR would fail to state
a claim for relief.
III. Fair Debt Collection Practices Act (“FDCPA”) Claims

The FDCPA prohibits deceptive and misleading practices by “debt collectors.” Anderson
v. Experian, No. 19-CV-8833 (CM), 2019 WL 6324179, at *2 (S.D.N.Y. Nov. 26, 2019)
(quoting 15 U.S.C. § 1692e). The statute’s purpose is to “eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” Kropelnicki v. Siegel, 290 F.3d 118,
127 (2d Cir. 2002) (quoting 15 U.S.C. § 1692(e)) (quotation marks omitted). “To accomplish
these goals, the FDCPA creates a private right of action for debtors who have been harmed by

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abusive debt collection practices.” Anderson, 2019 WL 6324179, at *2 (citing 15 U.S.C. §
1692k). A plaintiff alleging an FDCPA claim must establish three elements:
(1) the plaintiff [must] be a ‘consumer’ who allegedly owes the debt or a person
who has been the object of efforts to collect a consumer debt, (2) the defendant
collecting the debt must be considered a ‘debt collector,’ and (3) the defendant
must have engaged in an act or omission in violation of the FDCPA’s
requirements.

Skvarla v. MRS BPO, LLC, No. 21 CV 55, 2021 WL 2941118, at *2 (S.D.N.Y. July 12, 2021)
(quoting Derosa v. CAC Fin. Corp., 278 F. Supp. 3d 555, 559–60 (E.D.N.Y. 2017)). Under the
FDCPA, a “debt collector” is “a person who, among other requirements, is engaged in any
‘business the principal purpose of which is the collection of any debts, or who regularly collects
or attempts to collect . . . debts owed or due . . . another.’” Perez v. Experian, No.
20CV9119PAEJLC, 2021 WL 4784280, at *12 (S.D.N.Y. Oct. 14, 2021), report and
recommendation adopted, No. 20CIV9119PAEJLC, 2021 WL 5088036 (S.D.N.Y. Nov. 2, 2021)
(quoting 15 U.S.C. § 1692a(6)). Further, the FDCPA specifically excludes from the definition of
“debt collector” any officer or employee of any State or municipality, to the extent that collecting
or attempting to collect any debt is in the performance of that individual’s official duties. 15
U.S.C. §§ 1692a(6)(C), (8).
Here, all of the Defendants are local officials of the Town of Hempstead, Nassau County,
and two Boards of Education. (Am. Compl. ¶ I(B) at 2–3.) None of the Defendants are alleged to
be “engaged in [a] business the principal purpose of which is the collection of any debts.” Perez,
2021 WL 4784280, at *12. Further, even if Neary had made such an allegation, municipal
officers and employees cannot be “debt collectors” under the FDCPA when collecting debt in the
course of performing their official duties. See Tsinberg v. New York, No. 20-CIV-

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749(PAE)(SLC), 2021 WL 1536659, at *15 (S.D.N.Y. Jan. 22, 2021) (citing 15 U.S.C.
§ 1692a(6)(C), (8)), report and recommendation adopted sub nom. Tsinberg v. City of New York,
No. 20-CIV-749 (PAE), judgment entered, No. 20-CIV-749 (PAE), 2021 WL 1167921
(S.D.N.Y. Mar. 25, 2021); see also Allen v. United Student Aid Funds, Inc., No. 17-CV-8192,
2018 WL 4680023, at *5 (S.D.N.Y. Sept. 28, 2018) (granting motion to dismiss when plaintiff
has not pled sufficient facts to classify defendants as debt collectors); Ojo v. United States, No.
20-CV-4882 (MKB), 2020 WL 7262853, at *5 (E.D.N.Y. Dec. 9, 2020) (dismissing FDCPA
claims against government officials “because, as government employees acting in the course of
their official duties, they are specifically excluded from FDCPA liability”) (citing Garcia v. Fry,
186 F. Supp. 3d 228, 232 (D. Conn. 2016) (holding that a defendant who “was attempting to
collect debts in the performance of his official duties as a state marshal” could not be sued under
the FDCPA); Perry v. Wright, No. 12-CV-721, 2013 WL 950921, at *5 (S.D.N.Y. Marc. 8,
2013) (holding that Internal Revenue Service employees acting in the course of their official
duties were not debt collectors within the meaning of the FDCPA); Burgess v. U.S. Dep’t of

Educ., No. 05-CV-98, 2006 WL 1047064, at *5 (D. Vt. Apr. 17, 2006) (holding that, due to the
official-duties exception, “an action under the FDCPA cannot be brought against the [federal
agency] defendants named in this case.”).
Thus, as is readily apparent, Neary’s FDCPA claims would fail even if this Court had
subject matter jurisdiction to adjudicate them. See supra at 6–8.
IV. Constitutional Claims
Neary claims a deprivation of his right to due process under the Fifth and Fourteenth

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Amendments to the U.S. Constitution.3 (Am. Compl. ¶ II.A.) The Due Process Clause of the
Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. The Fifth Amendment
extends this right to due process to federal actors. Pollok v. Chen, 806 F. App’x 40, 44 (2d Cir.
2020) (“The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due
Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of
property without due process of law.” (quotation marks omitted) (citing Dusenbery v. United
States, 534 U.S. 161, 167 (2002))). “An essential principle of due process is that a deprivation of
life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the
nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quotation
marks omitted). “A procedural due process claim is composed of two elements: (1) the existence
of a property or liberty interest that was deprived and (2) deprivation of that interest without due
process.” Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012). As set forth above
(see supra at 6–8), the state court provides an avenue for Neary to raise his claims rendering his

due process claims premature, at best. See Greenberg, 477 F. App’x at 850 (“[A]s correctly
determined by the district court, available New York remedies provide an adequate means for
litigating all of [Plaintiff’s tax] assessment claims in a state forum.”).
Furthermore, Neary’s Fifth Amendment Takings Clause claim fails because “the Tax
Injunction Act and comity considerations have prevented federal courts from hearing Fifth

3 Neary also includes the Sixth Amendment’s Supremacy Clause in his Amended Complaint.
However, “[t]he Supremacy Clause is not the source of any federal rights . . . and certainly does
not create a cause of action.” Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324–25
(2015) (citations and quotation marks omitted). Thus, there is no private right of action under the
Supremacy Clause. Id. at 324–27.

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Amendment takings claims as much as they have prevented them from hearing Fourteenth
Amendment equal protection claims” related to state and local taxation. Speer v. City of New
London, 537 F. Supp. 3d 212, 228 n.17 (D. Conn. 2021) (citing Tonina v. Ferraro, No. 3:19-cv-
00970, 2020 WL 3489520 (D. Conn. June 26, 2020); Rosa v. City of Syracuse, No. 5:16-cv-
1123, 2017 WL 4326517 (N.D.N.Y. Sept. 28, 2017)).
V. State Law Claims
Having dismissed Neary’s federal claims for the reasons set forth above, the Court
declines to exercise supplemental jurisdiction over any remaining state law claims. 28 U.S.C.
§ 1367(c)(3); Cohen v. Postal Holdings, LLC, 873 F.3d 394, 405 (2d Cir. 2017) (Calabresi, J.,
concurring) (the Second Circuit “takes a very strong position that state issues should be decided
by state courts.”) Thus, any state law claims that may be liberally construed from the allegations
in the Amended Complaint are dismissed without prejudice and with leave to replead in state
court.
VI. Leave to Amend

Although “federal courts should ‘liberally permit pro se litigants to amend their pleadings’
. . . ‘leave to amend need not be granted when amendment would be futile.’” Johnson v. Maximus
Servs. LLC, 22-CV-2935(AMD)(JRC), 2023 WL 5612826, at *6 (E.D.N.Y. Aug. 30, 2023) (citing
Terry v. Inc. Patchogue, 826 F.3d 631, 633 (2d Cir. 2016)). For the reasons set forth above, this
Court lacks subject matter jurisdiction to adjudicate Neary’s claims and this problem cannot be
cured with better pleading. Accordingly, amendment would be futile. This Court therefore denies
leave to further amend the Amended Complaint. Neary may pursue any valid claims he may have
against the Defendants in state court.

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CONCLUSION
For the reasons stated above, this Court grants Neary’s motion to proceed IFP (ECF No. 2)
and dismisses his Amended Complaint (ECF No. 8) without prejudice for lack of subject matter
jurisdiction pursuant to Rule 12(h)(3), Fed. R. Civ. P. Leave to further amend the Amended
Complaint is denied and Neary may pursue his claims in state court.
The Clerk of the Court shall enter judgment accordingly and close this case. The Clerk of
the Court shall also mail a copy of this Order to Neary at his address of record and note such
mailing on the docket.
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).

Dated: Central Islip, New York
April 19, 2024

/s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311668. Public record. Not legal advice.