Eggsware v. Carter

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

SHAWN EGGSWARE,

Plaintiff,

1:22-cv-00897

v. (BKS/TWD)

SEAN CARTER, ROBYN RIHANNA FENTY, and

ALICIA AUGELLO COOK,

Defendants.

_____________________________________________

APPEARANCES:

SHAWN EGGSWARE

Plaintiff, pro se

66 2nd Street

Apt 3

Waterford, NY 12188

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

The Clerk has sent to the Court for review a complaint brought pursuant to 42 U.S.C. §

1983, filed by Shawn Eggsware (Plaintiff”). (Dkt. No. 1.) Plaintiff has also moved to proceed in

forma pauperis (“IFP”). (Dkt. No. 2.)

I. IFP APPLICATION

A review of Plaintiff’s IFP application shows that he declares he is unable to pay the

filing fee. (Dkt. No. 2.) After reviewing his application, this Court finds Plaintiff is financially

eligible for IFP status. Therefore, Plaintiff’s IFP application is granted for purposes of filing

only.1

1 Plaintiff should also note that although his IFP Application has been granted, he will still be

required to pay fees that he may incur in this action, including copying and/or witness fees.

II. SUFFICIENCY OF THE COMPLAINT

A. Legal Standard

This Court must conduct an initial review of complaints filed IFP. 28 U.S.C. § 1915(e).

When conducting this review, “the court shall dismiss the case at any time if the court

determines . . . the action . . . is frivolous or malicious . . . [or] fails to state a claim on which

relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii); see also Allen v. Stringer, No. 20-

3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021). The Court must also dismiss a

complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed. R. Civ.

P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant’s complaint is to be

held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed

Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

“An action is frivolous when either: (1) the factual contentions are clearly baseless such

as when the claims 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). “A claim is based on an indisputably meritless legal theory when either the claim

lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the

complaint.” Id.

To survive dismissal for failure to state a claim, a complaint must contain a short and

plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2).

This short and plain statement of the claim must be “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). The statement of the

claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It

must “give the defendant fair notice of what the claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555; see also Fed. R. Civ. P. 8(a)(2).

In determining whether a complaint states a claim upon which relief may be granted, “the

court must accept the material facts alleged in the complaint as true and construe all reasonable

inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).

“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

B. Summary of Complaint

On August 29, 2022, Plaintiff commenced this action against Sean Carter, Robyn

Rihanna Fenty, and Alicia Augello Cook (collectively, “Defendants”), also commonly known as

Jay-Z, Rihanna, and Alicia Keys. (Dkt. No. 1.) Plaintiff’s factual allegations are reproduced in

their entirety as follows: “These people are just watching me play with my daughter. I make

these homemade videos and every day, they just watch me play with my daughter and then

torment her and I on YouTube and Instagram.” Id. at 2. The complaint seeks damages in the

amount of $25,000 and the issuance of restraining orders. Id. at 3-4.

C. Analysis

Plaintiff purportedly brings this action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.)

Having carefully reviewed Plaintiff’s complaint, the Court recommends that it be dismissed in its

entirety.

“To state a valid claim under § 1983, the plaintiff must allege that the challenged conduct

(1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a

right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen

v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-

76 (2d Cir. 1994)). Thus, § 1983 does not create any independent substantive right, but rather

“provides a civil claim for damages” to “redress . . . the deprivation of [federal] rights

established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).

The requirement that the defendant acted under “color of state law” is jurisdictional.

Bennett v. Bailey, No. 5:20-CV-0903 (GTS/ATB), 2020 WL 5775940, at *2 (N.D.N.Y. Aug. 17,

2020), report-recommendation adopted, 2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). Private

conduct is simply beyond the reach of § 1983 “‘no matter how discriminatory or wrongful’ that

conduct may be.” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)).

Therefore, a plaintiff must establish that the defendant was either a state actor or a private party

acting under color of state law. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323 (2d Cir.

2002); see also United States v. Int’l Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers

of America, 941 F.2d 1292, 1295-96 (2d Cir. 1991) (“Because the United States Constitution

regulates only the Government, not private parties, a litigant claiming that his constitutional

rights have been violated must first establish that the challenged conduct constitutes ‘state

action.’”). A private party engages in state action when they are found to be a “willful

participant in joint activity with the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S.

144, 152 (1970) (citing United States v. Price, 383 U.S. 787, 794 (1966)). “Conduct that is

ostensibly private can be fairly attributed to the state only if there is such a close nexus between

the State and the challenged action that seemingly private behavior may be fairly treated as that

of the State itself.” White v. Moylan, 554 F. Supp. 2d 263, 267 (D. Conn. 2008) (citation

omitted).

Here, there is nothing in the complaint to suggest Defendants are “state actors” or private

citizens acting under the color of state law. There is no indication that Defendants were a

“willful participant” in joint activity with the State, or in any way established a “close nexus”

with the State. Adickes, 398 U.S. at 152; White, 554 F. Supp. 2d at 267. Because Defendants are

private citizens, and Plaintiff’s allegations do not involve conduct the Court construes to be joint

activity with the State, Plaintiff has failed to allege a claim pursuant to § 1983, which would

raise a federal question.

Further, even if, arguendo, Plaintiff had named state actors or demonstrated Defendants

were persons acting under color of state law, there is nothing in the complaint that suggests, even

under the most liberal reading, that any constitutional right of Plaintiff’s was violated through the

alleged invasion of his privacy as described in the complaint. Even applying special solicitude,

the undersigned can identify no other law or statute under which Plaintiff can properly bring his

claim in this Court.

Nor does the complaint satisfy the requirements of diversity jurisdiction. Diversity

jurisdiction can be established when the case is between citizens of different States and the

“matter in controversy exceeds the sum or value of $75,000[.]” 28 U.S.C.A. § 1332(a)(1). The

complaint fails to establish complete diversity of citizenship between the parties and the amount

in controversy is not met in this case.

Therefore, the Court recommends dismissal of the complaint for lack of subject matter

jurisdiction. Thus, any dismissal must be without prejudice. Hollander v. Garrett, 710 F. App’x

35, 36 (2d Cir. 2018) (“[D]ismissal for subject matter jurisdiction must be without prejudice.”).

D. Opportunity to Amend

Generally, when the court dismisses a pro se complaint sua sponte, the court should

afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be

denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,

131 (2d Cir. 1993). “[L]ack of subject matter jurisdiction is a substantive defect that cannot be

cured by better pleading.” Moran v. Proskauer Rose LLP, No. 1:17-CV-00423 (MAD/TWD),

2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017); see also Guillory v. Bishop Nursing Home,

21-CV-0410 (MAD/ATB), 2021 WL 2431259, at *3 (N.D.N.Y. June 15, 2021) (dismissing the

complaint “without prejudice” and “without leave to amend” because the Court “lack[ed] . . .

subject matter jurisdiction”).

This Court has serious doubts about whether Plaintiff can amend to assert any form of

federal jurisdiction over the situation that he describes in his complaint. Nevertheless, in

deference to Plaintiff’s pro se status and out of an abundance of caution, the Court recommends

affording Plaintiff an opportunity to amend his complaint.2

2 Should Plaintiff be permitted to amend his complaint, any amended pleading must comply

with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint,

which shall supersede and replace in its entirety the previous complaint filed by Plaintiff, must

contain sequentially numbered paragraphs containing only one act of misconduct per paragraph.

Thus, if Plaintiff claims that his civil and/or constitutional rights were violated by more than one

defendant, or on more than one occasion, he should include a corresponding number of

paragraphs in his amended complaint for each such allegation, with each paragraph specifying (i)

the alleged act of misconduct; (ii) the date, including the year, on which such misconduct

occurred; (iii) the names of each and every individual who participated in such misconduct; (iv)

where appropriate, the location where the alleged misconduct occurred; and, (v) the nexus

between such misconduct and Plaintiff’s civil and/or constitutional rights. Plaintiff is further

cautioned that no portion of his prior complaint shall be incorporated into his amended complaint

by reference. Any amended complaint submitted by Plaintiff must set forth all of the claims

he intends to assert against the defendants and must demonstrate that a case or

controversy exists between Plaintiff and the defendants which Plaintiff has a legal right to

pursue and over which this Court has jurisdiction. If Plaintiff is alleging that the named

defendants violated a law, he should specifically refer to such law.

E. Warning

Plaintiff has a history of filing IFP complaints in the Northern District of New York that

are dismissed on initial review. See Eggsware v. Albany Masonic Temple et al., 1:21-cv-00933-

GLS-ML (filed 08/18/21; closed 04/14/22); Eggsware v. United States Secret Service et al.,

1:21-cv-01029-GTS-CFH (filed 09/17/21; closed 05/11/22); Eggsware v. East Coast Syndicate

et al., 1:21-cv-01064-LEK-CFH (filed 09/27/21; closed 05/05/22); Eggsware vs. Doe, 1:22-cv-

00054-BKS-CFH (filed 01/21/22; closed 03/18/22); Eggsware v. Winfrey et al., 1:22-cv-00077-

GLS-DJS (filed 01/27/22; closed 05/02/22); Eggsware v. Google et al., 1:22-cv-00868-GTS-DJS

(filed 08/22/22).3

Plaintiff is cautioned that the filing of vexatious, harassing, or duplicative lawsuits may

result in the imposition of sanctions, including limitations on his ability to file without prior

permission of the Court. See Ajamian v. Nimeh, 14-CV-0320 (GTS), 2014 WL 6078425, at *3

(N.D.N.Y. Nov. 13, 2014) (“[A] federal district court may impose reasonable filing restrictions

on a pro se litigant in that particular court, pursuant to 28 U.S.C. § 1651(a) and its inherent

authority to control and manage its own docket so as to prevent abuse in its proceedings.”); see

also In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff has demonstrated a

“clear pattern of abusing the litigation process by filing vexatious and frivolous complaints,” a

“leave to file” requirement may be instituted by the court as an appropriate sanction); Hong Mai

3 On August 31, 2022, U.S. Magistrate Judge Stewart reviewed Plaintiff’s IFP complaint in

Eggsware v. Google et al, 1:22-cv-00868, which also asserts a single cause of action for invasion

of privacy against numerous celebrities on a form Section 1983 complaint and recommended

dismissal of the complaint with leave to amend. See Eggsware v. Google et al, 1:22-cv-00868

GTS-DJS (Dkt. No. 6). On October 11, 2022, U.S. District Judge Suddaby accepted and adopted

the report-recommendation in its entirety. Id., Dkt. No. 7. As such, Plaintiff’s complaint in

Eggsware v. Google et al, 1:22-cv-00868 shall be dismissed unless, within thirty (30) days from

the date of that Order, Plaintiff files an amended complaint correcting the pleading defects

identified in the report-recommendation. Id.

Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious,

harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future

access to the judicial system.”).

WHEREFORE, for the reasons stated herein, it is hereby

ORDERED that Plaintiff's IFP application (Dkt. No. 2) is GRANTED; and it is further

RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITHOUT

PREJUDICE AND WITH LEAVE TO REPLEAD; and it is further

ORDERED that the Clerk serve a copy of this Order and Report-Recommendation,

along with copies of the unpublished decisions cited herein in accordance with Lebron v.

Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.

Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written

objections to the foregoing report.* Such objections shall be filed with the Clerk of the Court.

FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL

PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing

Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1)

(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

IT IS SO ORDERED.

Dated: October 13, 2022

Syracuse, New York a zy /.

Therese Wiley Dancks

United States Magistrate Judge

* If you are proceeding pro se and are served with this Order and Report-Recommendation by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date the Order and Report-Recommendation was mailed to you to serve

and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).

2021 WL 4472667 appeal.

Only the Westlaw citation is currently available.

United States Court of Appeals, Second Circuit. We review de novo a district court's sua sponte dismissal of

a complaint under 28 U.S.C. § 1915(e)(2). Zaleski v. Burns,

Doran ALLEN, Plaintiff-Appellant, 606 F.3d 51, 52 (2d Cir. 2010). Under that statute, the district

v. court must dismiss a complaint filed in forma pauperis if

Scott M. STRINGER, New York City Comptroller, it determines that the action “(i) is frivolous or malicious;

Warden AMKC-C-95, Defendants-Appellees. (ii) fails to state a claim on which relief may be granted;

or (iii) seeks monetary relief against a defendant who is

20-3953 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). To

| avoid dismissal, a complaint must plead “enough facts to

September 30, 2021 state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft

Appeal from a judgment of the United States District Court v. Iqbal, 556 U.S. 662, 678 (2009) (recognizing that “legal

for the Southern District of New York (Stanton, J.). conclusions” and “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

UPON DUE CONSIDERATION, IT IS HEREBY not suffice” to plead a viable claim). Pro se submissions are

ORDERED, ADJUDGED, AND DECREED that the reviewed with “special solicitude,” and “must be construed

judgment of the district court is AFFIRMED.

liberally and interpreted to raise the strongest arguments that

they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d

Attorneys and Law Firms

471, 474–75 (2d Cir. 2006) (internal quotation marks and

FOR PLAINTIFF-APPELLANT: Doran Allen, pro se, emphasis omitted).

Ossining NY.

Conditions-of-confinement claims brought by pretrial

FOR DEFENDANTS-APPELLEES: No appearance. detainees are analyzed under the Fourteenth Amendment's

Due Process clause. Darnell v. Pineiro, 849 F.3d 17, 29

PRESENT: RICHARD C. WESLEY, RICHARD J.

(2d Cir. 2017). To state such a claim, a plaintiff must

SULLIVAN, Circuit Judges, JOHN G. KOELTL, District

satisfy both an objective prong and a subjective prong.

Judge.*

See id. The objective prong requires “showing that the

challenged conditions were sufficiently serious to constitute

* Judge John G. Koeltl of the United States District objective deprivations of the right to due process,” while

Court for the Southern District of New York, sitting the subjective prong requires “showing that [an] officer

by designation. acted with at least deliberate indifference to the challenged

conditions.” Id. (internal quotation marks omitted). If a

conditions-of-confinement claim is predicated on an unsafe

condition, a court will analyze “whether society considers

SUMMARY ORDER

the risk that the prisoner complains of to be so grave that it

Appellant Doran Allen, proceeding pro se, sued Scott M. violates contemporary standards of decency to expose anyone

Stringer, in his capacity as New York City Comptroller, and unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25,

the unnamed warden of the Rikers Island Anna M. Kross 36 (1993).

Center (“AMKC”) under 42 U.S.C. § 1983 for violations of

the Due Process Clause of the Fourteenth Amendment. Allen Allen alleges that he slipped or tripped on broken stairs,

alleges that, while he was detained at AMKC, a corrections causing him to fall. But while the existence of broken stairs

officer refused to help him carry breakfast trays, causing him could be deemed to constitute negligence on the part of

to slip and fall on broken stairs, injuring himself. The district the prison, broken stairs alone cannot satisfy the objective

court dismissed the complaint sua sponte for failure to state a prong of a conditions-of-confinement claim. See McCray v.

claim. We assume the parties’ familiarity with the underlying Lee, 963 F.3d 110, 120 (2d Cir. 2020) (explaining that the

defendant's complaint alleging unconstitutional conditions of

show “exceptional circumstances” that would “elevate” the The district court also did not abuse its discretion by declining

conditions “beyond the typical level of danger presented by to exercise supplemental jurisdiction over any state-law

a slippery sidewalk or a wet floor”). Because broken stairs claims because the district court properly dismissed Allen's

cannot be considered a risk that is “so grave that it violates § 1983 claim, the only claim over which it had original

contemporary standards of decency,” Allen's conditions-of- jurisdiction. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d

confinement claim was properly dismissed. Helling, 509 U.S. 118, 122 (2d Cir. 2006) (“[A] district court may decline

at 36. to exercise supplemental jurisdiction if it has dismissed all

claims over which it has original jurisdiction.” (internal

*2 But even if it could be argued that Allen alleged quotation marks omitted)).

an objectively serious condition, the district court properly

dismissed Allen's claims against Stringer and the AMKC Finally, the district court did not err by denying Allen leave

warden due to the obvious deficiencies in Allen's complaint. to amend his complaint. A district court should not dismiss a

As the district court concluded, the suit against the warden in pro se plaintiff's complaint without granting leave to amend

his official capacity was more properly a suit against the City “when a liberal reading of the complaint gives any indication

of New York because Allen did not allege that the warden that a valid claim might be stated.” Cuoco v. Moritsugu,

personally had done or failed to do anything that violated 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks

his rights. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits omitted). As discussed above, the incident involving the

against state officials in their official capacity... should be corrections officer and the broken steps did not amount to a

treated as suits against the State.”). Similarly, Stringer, as the due process violation, and that deficiency in the complaint

New York City Comptroller, is sued in his official capacity. cannot not be cured. Accordingly, amendment would have

Allen was therefore obligated to allege sufficient facts been futile.

showing that the Fourteenth Amendment violation occurred

We have considered all of Allen's remaining arguments and

“pursuant to a municipal policy or custom,” Patterson v. Cnty.

of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (citing, inter

find them to be without merit. Accordingly, we AFFIRM the

judgment of the district court.

alia, Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692–94

(1978)), or was caused by a “failure to train,” Segal v. City of

New York, 459 F.3d 207, 219 (2d Cir. 2006) (citing Monell,

All Citations

436 U.S. at 694). Allen did not allege any facts showing that

the corrections officer acted pursuant to an unconstitutional Not Reported in Fed. Rptr., 2021 WL 4472667

policy or custom, or that the City of New York failed to train

its corrections officers, as required for such a claim.

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

2015 WL 151029 Recommendation (Dkt. No. 4) is ACCEPTED and

Only the Westlaw citation is currently available. ADOPTED in its entirety; and it is further

United States District Court,

N.D. New York. ORDERED that Plaintiff's Complaint (Dkt. No. 1) is

DISMISSED without leave to replead and without prejudice.

Rudoph M. BRUCE, II, on behalf of

himself and his son, T.R.B., Plaintiff, The Court hereby certifies, for purposes of 28 U.S.C. §

v. 1915(a) (3), that any appeal taken from the Court's final

TOMPKINS CNTY. DEP'T OF SOC. SERVS., judgment in this action would not be taken in good faith.

through Kit KEPHART, Cmm'r; Jennifer M.

Donlan, Esq.; and Patricia A. Carey, Comm'r,

Tompkins Cnty. Dep't of Soc. Servs., Defendants. REPORT, RECOMMENDATION, AND ORDER

No. 5:14–CV–0941 (GTS/DEP). DAVID E. PEEBLES, United States Magistrate Judge.

|

Pro se plaintiff Rudolph M. Bruce, II., purporting to act

Signed Jan. 7, 2015.

on behalf of himself and his son, T.R.B., has commenced

Attorneys and Law Firms this action against Tompkins County Department of Social

Services (“DSS”) and two individuals, pursuant to 42 U.S.C.

Rudolph M. Bruce, II, Newfield, NY, pro se. § 1983, alleging that the defendants have deprived him

and his son of their civil rights. Plaintiff's complaint and

accompanying application for leave to proceed in forma

DECISION and ORDER pauperis (“IFP”) have been referred to me for consideration.

For the reasons set forth below, I recommend that plaintiff's

GLENN T. SUDDABY, District Judge. complaint be dismissed without leave to replead.

*1 Currently before the Court, in this pro se civil

rights action filed by Rudolph M. Bruce, II, on behalf I. BACKGROUND

of himself and his son T.R.B. (“Plaintiff”) against the This action was commenced on July 28, 2014. Dkt. No. 1.

above-captioned county and two individuals (“Defendants”) Plaintiff's complaint asserts claims on his behalf and on behalf

arising from a currently pending proceeding in Tompkins of his son, T.R.B., and names Tompkins County DSS, Kit

County Family Court, are (1) United States Magistrate Judge Kephart, Jennifer M. Donlan, Esq., and Patricia A. Carey as

David E. Peebles' Report–Recommendation recommending defendants. Id . at 1–2. Plaintiff's complaint is accompanied

that Plaintiff's Complaint be dismissed without leave to by an application for leave to proceed IFP. Dkt. No. 2.

replead and without prejudice pursuant to the Younger

doctrine, and (2) Plaintiff's two-page Objection, which fails to In his complaint, plaintiff alleges that his son's First

contain a specific challenge to the Report–Recommendation. Amendment right of free speech was infringed by the

(Dkt.Nos .4, 5.) After carefully reviewing the relevant filings defendants, who apparently took custody of T.R.B. and his

in this action, the Court can find no clear error in the Report– siblings1 on or about June 17, 2014, based upon T.R.B.'s

Recommendation: Magistrate Judge Peebles employed the statement that “he would rather be dead if he could not be with

correct legal standards, accurately recited the facts, and his family.”2 Dkt. No. 1 at 5. The complaint suggests that,

reasonably applied the law to those facts. As a result, the

prior to taking custody of T.R.B. and his siblings, Tompkins

Court accepts and adopts the Report–Recommendation for

County DSS investigated a complaint of alleged child neglect,

the reasons stated therein. (Dkt. No. 4.) The Court would

and proceedings before Honorable Joseph R. Cassidy, a

add only that Magistrate Judge Peebles' thorough Report–

Tompkins County Family Court Judge, have commenced

Recommendation would survive even a de novo review.

regarding the custody of the children. Id. at 6.

ACCORDINGLY, it is

sister, and plaintiff's IFP application indicates that 1. Standard of Review

Because I have granted plaintiff's motion to proceed in forma

plaintiff has three children. Dkt. No. 1 at 5; Dkt.

pauperis, I must review the sufficiency of the claims set forth

No. 2 at 2.

in his complaint in light of 28 U.S.C. § 1915(e). Section

2 Plaintiff's complaint does not disclose the age of 1915(e) directs that, when a plaintiff seeks to proceed IFP,

T.R.B. Dkt. No. 1. “the court shall dismiss the case at any time if the court

determines that ... the action ... (i) is frivolous or malicious;

*2 Liberally construed, plaintiff's complaint alleges that (ii) fails to state a claim on which relief may be granted; or

defendants have deprived him of his right to custody of (iii) seeks monetary relief against a defendant who is immune

his children under the First, Fourth, Fifth, and Fourteenth from such relief.” 28 U.S.C. § 1915(e)(2)(B).

Amendments, and have deprived T.R.B. of his First

Amendment right to free speech. See generally Dkt. No. 1. As In deciding whether a complaint states a colorable claim,

relief, plaintiff seeks (1) return of his children to his custody a court must extend a certain measure of deference in

and (2) Judge Cassidy's recusal from the pending family favor of pro se litigants, Nance v. Kelly, 912 F.2d 605,

court matter in Tompkins County or removal of the matter to 606 (2d Cir.1990) (per curiam), and extreme caution should

Broome County. Id. at 4, 7. be exercised in ordering sua sponte dismissal of a pro se

complaint before the adverse party has been served and the

parties have had an opportunity to address the sufficiency

II. DISCUSSION

of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d

A. Application to Proceed IFP 37, 41 (2d Cir.1983). However, the court also has an

When a civil action is commenced in a federal district court, overarching obligation to determine that a claim is not legally

the statutory filing fee, currently set at $400, must ordinarily frivolous before permitting a pro se plaintiff's complaint

be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to proceed. See, e.g., Fitzgerald v. First East Seventh St.

to permit a litigant to proceed IFP if it determines that he is Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) (holding that

unable to pay the required filing fee. 28 U.S.C. § 1915(a)(1).3 a district court may sua sponte dismiss a frivolous complaint,

notwithstanding the fact that the plaintiff paid the statutory

In this instance, because I conclude that plaintiff meets the

filing fee). “Legal frivolity ... occurs where ‘the claim is based

requirements for IFP status, his application is granted.4

on an indisputably meritless legal theory [such as] when either

the claim lacks an arguable basis in law, or a dispositive

3 The language of that section is ambiguous, in that defense clearly exists on the face of the complaint.’ “ Aguilar

it suggests an intent to limit availability of IFP v. United States, Nos. 99–MC–0304, 99–MC–0408, 1999 WL

status to prison inmates. See 28 U.S.C. § 1915(a) 1067841, at *2 (D.Conn. Nov. 8, 1999) (quoting Livingston v.

(1) (authorizing the commencement of an action Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998));

without prepayment of fees “by a person who see also Neitzke v. Williams, 490 U.S. 319, 325 (1989)

submits an affidavit that includes a statement of (“[D]ismissal is proper only if the legal theory ... or factual

all assets such prisoner possesses”). Courts have contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d.

construed that section, however, as making IFP 51, 53 (2d Cir.1995) (“[T]he decision that a complaint is based

status available to any litigant who can meet the on an indisputably meritless legal theory, for the purposes of

governing financial criteria. Hayes v. United States, dismissal under section 1915(d), may be based upon a defense

71 Fed. CI. 366, 367 (Fed.Cl.2006); see also that appears on the face of the complaint.”).

Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.

1 (S.D.N.Y.2002). *3 When reviewing a complaint under section 1915(e), the

court looks to applicable requirements of the Federal Rules

4 Plaintiff is reminded that, although his IFP of Civil Procedure for guidance. Specifically, Rule 8 of the

application has been granted, he will still be Federal Rules of Civil Procedure provides that a pleading

required to pay fees that he incurs in this action, must contain “a short and plain statement of the claim

including copying and/or witness fees. showing that the pleader is entitled to relief.” Fed.R.Civ.P.

8(a)(2). The purpose of Rule 8 “is to give fair notice of the

defense and determine whether the doctrine of res judicata is Second, “[a] state plainly has an interest in the outcome of

applicable.” Powell v. Marine Midland Bank, 162 F.R .D. 15, a child custody dispute adjudicated in its courts.” Grieve

16 (N.D.N.Y.1995) (McAvoy, J.) (quotation marks and italics v. Tamerin, 269 F.3d 149, 152–53 (2d Cir.2001). Turning

omitted). to the third condition, “the relevant question under Younger

is whether the state's procedural remedies could provide

A court should not dismiss a complaint if the plaintiff the relief sought not whether the state will provide the

has stated “enough facts to state a claim to relief that is constitutional ruling which the plaintiff seeks.” Spargo v.

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. N.Y. State Comm'n of Judicial Conduct, 351 F.3d 65, 79 (2d

544, 570 (2007). “A claim has facial plausibility when the Cir.2003) (quotation marks, alterations, emphasis omitted).

plaintiff pleads factual content that allows the court to draw Courts in this circuit have frequently concluded that a

the reasonable inference that the defendant is liable for pending proceeding in state family court “affords ... adequate

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, opportunity for judicial review of [a plaintiff's] constitutional

678 (2009). Although the court should construe the factual claims.” Best v. City of N.Y., No. 12–CV–7874, 2014 WL

allegations in a light most favorable to the plaintiff, “the tenet 163899, at *10 (S.D.N.Y. Jan. 15, 2014); see also Hidalgo

that a court must accept as true all of the allegations contained v. N.Y., 11–CV–5074, 2011 WL 5838494, at *3 (E.D.N.Y.21,

in a complaint is inapplicable to legal conclusions.” Iqbal, 556 2011); Reinhardt v. Mass. Dep't of Soc. Servs., 715 F.Supp.

U.S. at 678. “Threadbare recitals of the elements of a cause 1253, 1257 (S.D.N.Y.1989).

of action, supported by mere conclusory statements, do not

suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus, “where Based upon the foregoing, I recommend that the court abstain

the well-pleaded facts do not permit the court to infer more from addressing any of the claims asserted in the plaintiff's

than the mere possibility of misconduct, the complaint has complaint, all of which relate directly to the proceeding

alleged-but it has not ‘show[n]'-‘that the pleader is entitled to pending in Tompkins County Family Court.

relief.’ “ Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

C. Whether to Permit Amendment

2. Analysis of Plaintiff's Claims Ordinarily, a court should not dismiss a complaint filed by a

It is clear from plaintiff's complaint that the claims asserted pro se litigant without granting leave to amend at least once

on his behalf and on behalf of T.R.B. directly relate to “when a liberal reading of the complaint gives any indication

a pending proceeding before Judge Cassidy in Tompkins that a valid claim might be stated.” Branum v. Clark, 927 F.2d

County Family Court regarding the custody of T.R.B. and 698, 704–05 (2d Cir.1991); see also Fed.R.Civ.P. 15(a) ( “The

his siblings. Dkt. No. 1 at 6. Pursuant to Younger v. Harris, court should freely give leave when justice so requires.”);

401 U.S. 37, 43–45 (1971), and its progeny, however, a see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp.

federal district court does not have jurisdiction over an action 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where

seeking injunctive or declaratory relief “where ‘1) there is court could “not determine that the plaintiffs would not,

an ongoing state proceeding; 2) an important state interest under any circumstances, be able to allege a civil RICO

is implicated; and 3) the plaintiff has an avenue open for conspiracy”). An opportunity to amend is not required,

review of constitutional claims in state court.’ “ Parent v. N.Y., however, where “the problem with [the plaintiff's] causes of

485 F. App'x 500, 503 (2d Cir.2012) (quoting Liberty Mut. action is substantive” such that “better pleading will not cure

Ins. Co. v. Hurlbut, 585 F.3d 639, 647 (2d Cir.2009)). The it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see

Younger doctrine “applies with equal force to [both criminal also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48

and] civil proceedings,” including proceedings pending in (2d Cir.1991) (“Of course, where a plaintiff is unable to allege

family courts. Parent, 485 F. A'ppx at 503; Donkor v. City any fact sufficient to support its claim, a complaint should

of N.Y. Human Res. Admin. Special Servs. for Children, 673 be dismissed with prejudice.”). Stated differently, “[w]here

F.Supp. 1221, 1224 (S.D.N.Y.1987). it appears that granting leave to amend is unlikely to be

productive, ... it is not an abuse of discretion to deny leave to

*4 In this case, it is clear from plaintiff's complaint that amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d

the three conditions necessary to establish Younger abstention Cir.1993); accord, Brown v. Peters, No. 95–CV–1641, 1997

are satisfied. First, as discussed above, there is an ongoing WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).

the claims asserted in plaintiff's complaint on his behalf reflects that he is eligible for that status. Because all of

and on behalf of T.R .B. due to the pending proceeding in plaintiff's claims asserted both on his behalf and on behalf of

Tompkins County Family Court, and no amendment to the T.R.B. relate to an ongoing proceeding in Tompkins County

complaint could cure this defect. Accordingly, I recommend Family Court, however, I recommend that the court abstain

from adjudicating any of them. Based upon the foregoing, it

that plaintiff not be granted leave to replead.5

is hereby

5 It is worth noting that plaintiff is precluded from ORDERED that plaintiff's leave to proceed in this action in

pursuing claims on behalf of his son, T.R.B., pro se. forma pauperis (Dkt. No. 2) is GRANTED; and it is further

See Cheung v. Youth Orchestra Found. of Buffalo, hereby respectfully

Inc., 906 F.2d 59, 61 (2d Cir.1990) (“[A] non-

attorney parent must be represented by counsel in RECOMMENDED that plaintiff's complaint be DISMISSED

bringing an action on behalf of his or her child.”); without leave to replead and without prejudice.

see also Fauconier v. Comm. on Special Educ., No.

02–CV–1050, 2003 WL 21345549, at *1 (S.D.N.Y. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties

June 10, 2003). In the event my recommendation may lodge written objections to the foregoing report. Such

that plaintiff's complaint be dismissed without objections must be filed with the clerk of the court within

leave to replead is not adopted by the district FOURTEEN days of service of this report. FAILURE

judge, and any of the claims asserted on behalf TO SO OBJECT TO THIS REPORT WILL PRECLUDE

of T.R.B. survive, plaintiff must first obtain legal APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.

representation to pursue those claims. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

In addition, because Tompkins County DSS is not

amenable to suit, Hoisington v. Cnty. of Sullivan, It is hereby ORDERED that the clerk of the court serve a

55 F.Supp.2d 212, 214 (S.D.N.Y.1999), in the event copy of this report and recommendation upon the parties in

any portion of the plaintiff's complaint survives accordance with this court's local rules.

review by the district judge, I recommend that

Tompkins County be substituted as a defendant in

the place of Tompkins County DSS. Filed Sept. 4, 2014.

All Citations

III. SUMMARU AND RECOMMENDATION

Not Reported in F.Supp.3d, 2015 WL 151029

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

2014 WL 6078425 the face of the record in order to accept the recommendation.”

Only the Westlaw citation is currently available. Id.; see also Batista v. Walker, 94–CV–2826, 1995 WL

United States District Court, 453299, at *1. (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I

N.D. New York. am permitted to adopt those sections of [a magistrate judge's]

report to which no specific objection is made, so long as

Robert H. AJAMIAN, Plaintiff, those sections are not facially erroneous.”) (internal quotation

v. marks and citations omitted).

Kinah NIMEH, Stock Broker at Gunn Allen

Financial, Arbitration 13–02183, Defendant. Here, based upon a review of this matter, the Court can

find no error with Magistrate Judge Hummel's Report–

No. 1:14–CV–0320 (GTS/CFH). Recommendation, clear or otherwise. (Dkt. No. 15.)

| Magistrate Judge Hummel employed the proper standards,

Signed Nov. 13, 2014. accurately recited the facts, and reasonably applied the law to

those facts. (Id.) Further, Magistrate Judge Hummel's Report–

Attorneys and Law Firms Recommendation would survive even a de novo review. As a

result, the Report–Recommendation is accepted and adopted

Robert H. Ajamian, Latham, NY, pro se.

in its entirety for the reasons stated therein.

DECISION and ORDER II. Proposed Amended Complaint

Ostensibly pursuant to Magistrate Judge Hummel's

Hon. GLENN T. SUDDABY, District Judge. recommendation that this Court grant Plaintiff leave to

file an amended complaint, Plaintiff prematurely filed a

*1 Currently before the Court, in the above-captioned

proposed amended complaint, but did so by insisting that

civil rights action filed by Robert H. Ajamian (“Plaintiff”)

it be treated as a separate action. (See Ajamian v. Gunn

against the above-captioned Defendants, is United States

Allen Fin., et al., 1:14–CV–1211 [DNH/ATB].) As Magistrate

Magistrate Christian F. Hummel's Report–Recommendation

Judge Andrew T. Baxter observed, that complaint adds a

recommending that Plaintiff's Complaint be dismissed

defendant, adds facts and changes the basis for Plaintiff's

pursuant to 28 U.S.C. § 1915 and § 1915A for failure to state

allegation of jurisdiction. (See id., Dkt. No. 5) However,

a claim but otherwise granting Plaintiff leave to submit an

because that complaint is “challenging the same conduct by

amended complaint. (Dkt. No. 15.) Plaintiff has not filed an

the same defendant at the same time as the complaint in [this

objection to the Report–Recommendation and the deadline

action],” Magistrate Judge Baxter closed the separate action

in which to do so has expired. (See generally Docket Sheet.)

and directed that the complaint filed therein be filed as a

Instead, Plaintiff has filed a proposed amended complaint.

proposed amended complaint in this action. (See id., Dkt.

For the reasons set forth below, Magistrate Judge Hummel's

No. 5.) Therefore, the Court will review Plaintiff's proposed

Report–Recommendation is accepted and adopted in its

amended complaint to determine whether a meritorious claim

entirety. In addition, Plaintiff's proposed amended complaint

is stated, which would allow the action to go forward.

is denied and this action is dismissed with prejudice. Further,

Plaintiff is directed to show cause, within thirty (30) days of

*2 As an initial matter, it is important to note that Plaintiff

this Decision and Order, as to why he should not be barred

filed an exact copy of the original complaint in this action in

from filing any future pro se documents or motions in this

the United States District Court for the District of Columbia

action without first obtaining leave of the Court.

on June 10, 2014, which was thereafter transferred to the

Eastern District of New York. See Ajamian v. Nimeh, 2:14–

I. Report–Recommendation CV–4093(JS/GRB). On September 26, 2014, the District

When no objection is made to a report-recommendation, the Judge in that case dismissed Plaintiff's claims without

Court subjects that reportrecommendation to only a clear prejudice and granted Plaintiff leave to file an amended

error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: complaint within thirty days of the filing of the Order. See

1983 Addition. When performing such a “clear error” review, Ajamian v. Nimeh, No. 14–CV–409, 2014 WL 4828884, at

the time allowed, the Complaint shall be DISMISSED WITH on lack of merit.4

PREJUDICE.” Id. (emphasis in original). Plaintiff having

not filed an amended complaint in that action within the 1

See Ajamian v. State of New York, No. 13–CV–

time allowed, his claims have been dismissed with prejudice.

1316, Complaint (N.D.N.Y. filed Oct. 23, 2013)

For this reason, the Court finds that the proposed amended

(pro se civil rights action); Ajamian v. Morgan

complaint in this action is futile because Plaintiff is estopped

Stanley Smith Barney, et. al, No. 14–CV–0306,

from pursuing his claims under the doctrine of res judicata.

Complaint (N.D.N.Y. filed Mar. 21, 2014) (pro

Under the doctrine of res judicata, or claim preclusion, se civil rights action); Ajamian v. Morgan Stanley

a final judgment on the merits of an action precludes Smith Barney, et. al, No. 14–CV–0319, Complaint

the parties or their privies from relitigating issues that (N.D.N.Y. filed Mar. 24, 2014) (pro se civil

were or could have been raised in that action. Thus, the rights action; Ajamian v. Nimeh, No. 14–CV–0320,

doctrine bars later litigation if an earlier decision was (1) a Complaint (N.D.N.Y. filed Mar. 24, 2014) (pro se

final judgment on the merits, (2) by a court of competent civil rights action); Ajamian v. Zakarian, No. 14–

jurisdiction, (3) in a case involving the same parties or CV–0321, (N.D.N.Y.2014) (current action barred

their privies, and (4) involving the same cause of action. by res judicata ); Ajamian v. Nimeh, No. 14–CV–

EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 4093, (E.D.N.Y.2014) (pro se civil rights action);

621, 624 (2d Cir.2007) (internal citations and quotation Ajamian v. Zakarian, No. 14–CV–1127, Complaint

omitted). (N.D.N.Y. filed Sept. 15, 2014) (pro se civil rights

action); Ajamian v. Morgan Stanley Smith Barney,

A dismissal with prejudice has the effect of a final et. al, No. 14–CV–1204, Complaint (N.D.N.Y.

adjudication on the merits favorable to defendant and bars filed Oct. 1, 2014) (pro se civil rights action);

future suits brought by plaintiff upon the same cause of Ajamian v. Nimeh, No. 14–CV–1211, Complaint

action. Such a dismissal constitutes a final judgment with (N.D.N.Y. filed Oct. 3, 2014) (pro se civil rights

the preclusive effect of res judicata not only as to all action).

matters litigated and decided by it, but as to all relevant

2

issues which could have been but were not raised and See Ajamian v. State of New York, No. 13–CV–

litigated in the suit. 1316, Judgment (N.D.N.Y. filed August 11, 2014)

(dismissing with prejudice for failure to state a

Nemaizer v. Baker, 793 F.2d 58, 60–61 (2d Cir.1986) (internal claim and lack of subject matter jurisdiction);

citations and quotation omitted). Ajamian v. Morgan Stanley Smith Barney, et. al,

No. 14–CV–0306, Judgment (N.D.N.Y. filed May

Consequently, Plaintiff's claims in his original complaint 28, 2014) (dismissing with prejudice for failure

as well as those in the proposed amended complaint are to state a claim); Ajamian v. Morgan Stanley

precluded under the doctrine of res judicata. See Nemaizer, Smith Barney, et. al, No. 14–CV–0319, Text Order

793 F.2d, at 61. For this reason, Plaintiff's proposed amended (N.D.N.Y. filed Mar. 26, 2014) (terminated action

complaint is denied and this action is dismissed without as duplicative of 14–CV–306); Ajamian v. Nimeh,

prejudice. No. 14–CV0320 (N.D.N.Y.2014) (current action

barred by res judicata); Ajamian v. Zakarian,

No. 14–CV0321, Judgment (N.D.N.Y. filed Aug.

III. Appropriateness of Bar Order

26, 2014) (dismissed with prejudice for failure

A review of Plaintiff's litigation history on the Federal

to state a claim and lack of subject matter

Judiciary's Public Access to Court Electronic Records

jurisdiction); Ajamian v. Nimeh, No. 14–CV–4093,

(“PACER”) Service reveals that, over the past year, Plaintiff

Memorandum & Order (E.D.N.Y. filed Sept. 26,

has filed nine pro se civil actions (including this one) in two

2014) (dismissed with prejudice for failure to state

different federal district courts.1 Eight of these nine actions,

a claim); Ajamian v. Morgan Stanley Smith Barney,

including the current action, have been dismissed based on et. al, No. 14–CV–1204, Judgment (N.D.N.Y.

pleading deficiencies or procedural failures.2 In addition, filed Oct. 30, 2014) (dismissed with prejudice for

Judgment (N.D.N .Y. filed Oct. 9, 2014) (closed Moates v. Barkley, 147 F.3d 207, 208 (2d Cir.1998) ( “[T]he

and ordered that complaint be filed as proposed district court may not impose a filing injunction on a litigant

amended complaint in 14–CV320). sua sponte without providing the litigant with notice and

3 an opportunity to be heard.”); Azubuko v. Unknown Boston

See Ajamian v. Morgan Stanley Smith Barney, LLC, Police Officers, 08–CV–0330, 2008 WL 1767067, at *1

No. 14–2212, Notice of Appeal (2d Cir. filed June (N.D.N.Y. Apr. 16, 2008) (McCurn, J.).

4, 2014); Ajamian v. State of New York, No. 14–

2934, Notice of Appeal (2d Cir. filed Aug. 15, Because of his history of filing unmerited and indeed

2014); Ajamian v. Zakarian, No. 14–3432, Notice vexatious lawsuits, including the current action, Plaintiff is

of Appeal (2d Cir. filed Sept. 2, 2014); Ajamian hereby warned that the Court will not tolerate the filing of

v. Morgan Stanley Smith Barney, 14–CV–1204, frivolous documents or motions in this action by him in

Notice of Appeal to 2d Cir. (N.D.N.Y. filed Nov. 3, the future. As a result, Plaintiff is directed to show cause,

2014). within thirty (30) days, why this Court should not issue an

4 Order barring him from filing any future pro se documents

See Ajamian v. Morgan Stanley Smith Barney,

or motions in this action without first obtaining leave of the

LLC, No. 14–2212, Order (2d Cir. filed Sept. 24,

Court. In the event that Plaintiff fails to show such cause, he

2014) (dismissing appeal for lack of arguable basis

will be prohibited from filing, in this action, any documents

in law or fact); Ajamian v. State of New York,

or motions without prior leave of the Court, pursuant to 28

No. 14–2934, Order (2d Cir. filed Oct. 22, 2014)

U.S.C. § 1651(a) and the Court's inherent authority to control

(dismissing appeal for lack of arguable basis in law

and manage its own docket so as to prevent abuse in its

or fact) (motion for reconsideration pending).

proceedings.

*3 Based on Plaintiff's litigation history, the Court finds

that (1) Plaintiff lacks a good-faith expectation in prevailing Further, in the event Plaintiff fails to show such cause,

in his lawsuits, (2) he has proven himself to be vexatious this case will be forwarded to Chief United States District

and indeed incorrigible when proceeding pro se, (3) he Judge Gary L. Sharpe with the recommendation of the

has caused needless expense to other parties and placed an undersigned that an Anti–Filing Injunction Order be issued

unnecessary burden on the Court and its personnel, and (4) against Plaintiff, which would prohibit Plaintiff from filing,

he has demonstrated that no lesser sanctions (e.g., such as in the Northern District of New York, any action pro se (that

dismissal or chastisement) would be adequate to protect the is, without counsel) without first obtaining leave of the Court.

Court and other parties.

*4 ACCORDINGLY, it is

Under such circumstances, a federal district court may impose

reasonable filing restrictions on a pro se litigant in that ORDERED that Magistrate Judge Hummel's Report–

particular court, pursuant to 28 U.S.C. § 1651(a) and its Recommendation (Dkt. No. 15) is ACCEPTED and

inherent authority to control and manage its own docket ADOPTED in its entirety; and it is further

so as to prevent abuse in its proceedings. For example, a

federal district court may, after providing an appropriate ORDERED that Plaintiff's proposed amended complaint

opportunity to be heard, prohibit a vexatious litigant from (Dkt. No. 32) is DENIED; and it is further

filing, in that particular court, any action pro se (that is,

without counsel), without prior leave of that court. See Hong ORDERED that Plaintiff's Complaint (Dkt. No. 1) is

Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.2005) (“If a litigant DISMISSED with prejudice; and it is further

has a history of filing vexatious, harassing or duplicative

lawsuits, courts may impose sanctions, including restrictions ORDERED that Plaintiff is hereby directed to show cause,

on future access to the judicial system.”) [internal quotations within thirty (30) days of this Decision and Order, why this

and citations omitted]; In re Sassower, 20 F.3d 42, 44 (2d Court should not issue an Order barring him from filing any

Cir.1994) (where a pro se plaintiff has demonstrated a “clear future pro se documents or motions in this action without

pattern of abusing the litigation process by filing vexatious first obtaining leave of the Court. In the event that Plaintiff

and frivolous complaints,” a “leave to file” requirement fails to show such cause, he will be prohibited from filing,

without counsel) without prior leave of the Court, pursuant normally used for litigants seeking redress of alleged

to 28 U.S.C. § 1651(a) and the Court's inherent authority to constitutional violations through 42 U.S.C. § 1983. An

control and manage its own docket so as to prevent abuse action commenced pursuant to 42 U.S.C. § 1983 requires

in its proceedings. proof of the “deprivation of any right[ ], privilege[ ], or

immunit[y] secured by the Constitution” or laws of the federal

government. 42 U.S.C. § 1983; see also German v. Fed.

Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D .

REPORT–RECOMMENDATION and ORDER

N.Y.1995) (“Section 1983 establishes a cause of action for the

CHRISTIAN F. HUMMEL, United States Magistrate Judge. deprivation of any rights, privileges, or immunities secured by

the Constitution and laws of the United States.”) (quotations

The Clerk has sent to the Court for review a complaint filed by omitted).

pro se plaintiff Robert H. Ajamian (“Ajamian”). Compl. (Dkt.

No. 1). Ajamian has not paid the filing fee and instead seeks *5 Ajamian's § 1983 action should be dismissed for multiple

permission to proceed with this matter in forma pauperis reasons. First, Ajamian fails to state a cognizable cause

(“IFP”). Dkt. Nos. 2, 5–6, 9, 12–14. of action for which relief can be granted. It is unclear to

the Court what civil or constitutional rights were allegedly

violated since Ajamian fails to specify the nature of such

rights. Ajamian only alleges that defendant failed to make

I. Discussion

conservative trades on his behalf. Furthermore, the named

defendant Nimeh is not asserted to have acted under the color

A. Application to Proceed IFP of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d

Cir.1994) (noting state action requirement under § 1983);

Ajamian has submitted an IFP Application. Despite the

Wise v. Battistoni, No. 92–CV–4288 (PKL),1992 WL 380914,

absence of a properly completed IFP application before the

Court, due to significant efforts made by Ajamian, coupled

at *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted).1

with a review of the information provided therein, the Court State action is an essential element of any § 1983 claim. See

finds that Ajamian may properly proceed with this matter IFP. Gentile v. Republic Tobacco Co., No. 95–CV–1500 (RSP)

(DNH), 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995)

(citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776

(N.D.N.Y.1994) (citation omitted)). There is no allegation

B. Allegations in the Complaint that Nimeh acted under color of state law with regard to

the stock trades. As such, § 1983 is not the proper vehicle

Section 1915(e) of Title 28 of the United States Code directs

through which Ajamian could seek judicial review of his

that, when a plaintiff seeks to proceed IFP, “the court shall

claims. Accordingly, to the extent Ajamian seeks to remedy

dismiss the case at any time if the court determines that ... the

a constitutional violation through § 1983, the complaint fails

action or appeal (i) is frivolous or malicious; (ii) fails to state a

to state a cause of action to which relief can be granted and

claim on which relief may be granted; or (iii) seeks monetary

should be dismissed.

relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to

determine that a plaintiff may properly maintain his complaint 1 All unpublished opinions cited to by the Court

before permitting him to proceed with his action. in this Report–Recommendation are, unless

otherwise noted, attached to this Recommendation.

Ajamian asserts that defendant Nimeh, a stock broker, Ajamian also asserts that Nimeh violated his rights under

violated his constitutional rights by placing non-conservative “U.S. civil statutes 22 A.L.R. 5th 261, 152 A.L.R. Fed. 1.”

trades using his retirement account between March 2005 Compl. at 1. Reliance on either authority is misplaced. Both

and September 2011, which resulted in a $30,000.00 loss. references are not to federal statutes but to American Law

Compl. at 2–4. Ajamian contends that he is entitled to treble Reports articles, the former concerns statutes on assaults

damages, or $90,000.00. Id. For a more complete statement motivated by hate crimes and ethnic intimidation while the

of Ajamian's claims, reference is made to the complaint. latter discusses governmental actions that constitute “reverse

261 (1994). The complaint is devoid of any factual allegations the amount in controversy is set at $90,000.00, thus meeting

concerning these legal issues. Therefore, despite Ajamian's the amount in controversy requirement, Ajamian has failed

conclusory statements, he has failed to state a claim in citing to satisfy the domicile requirement for purposes of diversity

these articles. jurisdiction. Accordingly, where the domicile requirement is

unmet, diversity jurisdiction does not exist and the Court

It is well established that a federal court is obligated to lacks subject matter jurisdiction to consider the action. When

notice on its own motion the basis for its own jurisdiction; subject matter jurisdiction is lacking, dismissal is mandatory.

thus, the Court must examine whether diversity jurisdiction United States v. Griffin, 303 U.S. 226, 229 (1938); FED. R.

exists. City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, CIV. P. 12(h)(3) (“If the court determines at any time that it

512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 lacks subject-matter jurisdiction, the court must dismiss the

F.2d 591, 605 (2d Cir.1988) (challenge to subject matter action.”). Thus, dismissal of this action may be warranted.

jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3)

(court may raise basis of its jurisdiction sua sponte ). To the extent Ajamian seeks to bring criminal charges

Ajamian asserts the following claims, “breach of fiduciary against Nimeh, Ajamian lacks a cognizable right in that

duty, misrepresentation/non-disclosure, activity suitability, regard. It is well-settled law in this Circuit that there is no

unauthorized trading, breach fo contract, error charges, constitutional right to have criminal wrongdoers prosecuted.

failure to supervise, margin calls, negligence, criminal See Connecticut Action Now, Inc. v. Roberts Plating Co., 457

misrepresentation, fraudulent concealment....” Compl. at 1. F.3d 81, 86–87 (2d Cir.1972) (“It is a truism ... that in our

Thus, the Court considers whether it has subject matter federal system crimes are always prosecuted by the Federal

jurisdiction under 28 U.S.C. § 1332, which confers diversity Government, not by ... private citizens.”).

jurisdiction.

Lastly, attached to Ajamian's complaint is a “FINRA

*6 For diversity jurisdiction to exist, the matter in [ (“Financial Industry Regulatory Authority”) ] dispute

controversy must exceed $75,000 and must be between resolution claim information tracking form” dated July 19,

2013, which indicates that a claim was filed against Nimeh,

(1) citizens of different States; to be resolved through arbitration proceedings. Compl. at

5–8. While Ajamian does not refer to a FINRA arbitral

(2) citizens of a State and citizens or subjects of a foreign

award in his complaint, allege specifics facts surrounding

state;

the circumstances of an arbitral award, request specific

(3) citizens of different States and in which citizens or judicial action on such an award, or attach the award to his

subjects of a foreign state are additional parties; and complaint, it appears that Ajamian filed a claim with FINRA

for arbitration proceedings to resolve disputes against Nimeh.

(4) a foreign state, defined in section 1603(a) of this title, Furthermore, Ajamian alludes to an arbitration proceeding

as plaintiff and citizens of a State or of different States. by inserting an arbitration number in the caption of his

complaint. Compl. at 1. In light of his pro se status, the

28 U.S.C. § 1332(a). For purposes of diversity jurisdiction, Court recommends that Ajamian be afforded an opportunity

an individual's citizenship is the individual's domicile, which to amend his complaint to make clear this cause of action.

is determined on the basis of two elements: “(1) physical Ajamian should also be provided an opportunity to provide

presence in a state and (2) the intent to make the state a home.” more facts in his amended complaint which would allow the

See Zimak Co. v. Kaplan, No. 98–CV–3176(DAB)NRB., Court, and defendant, to assess whether a meritorious action

1999 WL 38256, at *2 (S.D.N.Y. Jan. 28, 1999) (quoting is stated.

15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL

PRACTICE ¶ 102.34[2] (3d ed.1998)). Corporations are

deemed to be “a citizen of any State by which it has been

incorporated and of the State where it has its principal place II. Amendment

of business[.]” 28 U.S.C. § 1332(c).

*7 In sum, Ajamian's complaint in its current form fails to

state a claim for relief and fails to state the Court's subject

In the “Parties” section of the complaint and civil cover

matter jurisdiction. As such, dismissal would be appropriate

light of Ajamian's pro se status, this Court recommends that 28 U.S.C. § 1915 and § 1915A, plaintiff's complaint is

prior to dismissing this action, Ajamian be directed to amend DISMISSED for failure to state a claim upon which relief can

his complaint to provide clearer details regarding his claim. be granted and for lack of subject matter jurisdiction; and it

Ajamian is directed to draft a complaint which satisfies the is further

plausibility standard outlined in Ashcroft v. Iqbal, 556 U.S.

662 (2009), requiring plaintiffs to “plead [ ] factual content

RECOMMENDED that alternatively, in light of plaintiff's

pro se status, prior to dismissing plaintiff's complaint in

that allows the court to draw the reasonable inference that

its entirety, he be provided an opportunity to amend his

the defendant is liable for the misconduct alleged.” Id. at

complaint to amplify the facts that would support his claim

678 (citations omitted). Specifically, Ajamian is directed to

for entitlement to relief; and it is further

draft a complaint which Ajamian have to allege specific facts

sufficient to plausibly state that the FINRA arbitration award,

if it exists, merits judicial review.

ORDERED that the Clerk serve a copy of this Report–

Recommendation and Order on the parties in accordance with

the Local Rules.

III. Conclusion Pursuant to 28 U.S.C. § 636(b)(1), the parties may

lodge written objections to the foregoing report. Such

WHEREFORE, it is hereby

objections shall be filed with the Clerk of the Court

“within fourteen (14) days after being served with a copy

ORDERED that plaintiff's IFP application (Dkt.Nos.12–

of the ... recommendation.” N.Y.N.D.L.R. 72.1(c) (citing

14)2 is GRANTED;3 and it is further

28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT

TO THIS REPORT WITHIN FOURTEEN DAYS WILL

2 Plaintiffs' pending letter motions and exhibits PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

(Dkt.Nos.12–14) were filed in support of his IFP 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892

application, which was first filed on March 24, F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.

2014 (Dkt. No. 2). 72, 6(a), 6(e).

3 Plaintiff should note that although his IFP

Application has been granted, plaintiff will still be Filed May 22, 2014.

required to pay fees that he may incur in this action,

All Citations

including copying and/or witness fees.

Not Reported in F.Supp.3d, 2014 WL 6078425

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