# Dobbs v. SEFCU

> District Court, N.D. New York · December 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10315420

## Case

- **Court:** District Court, N.D. New York
- **Decided:** December 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10315420

## How later opinions describe it (automated extraction)

- holding that an appellant demonstrates good why a filing injunction should not be imposed. And at least faith when he seeks review of a nonfrivolous issue

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________

KRISTY DOBBS,

Plaintiff,
1:22-CV-1228
v. (LEK/TWD)

SEFCU,

Defendant.
_____________________________________________

APPEARANCES:

KRISTY DOBBS
Plaintiff, pro se
315 Sheridan Ave.
Albany, NY 12206

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
Kristy Dobbs (“Plaintiff”), proceeding pro se, commenced this action against SEFCU
(“Defendant”) on November 18, 2022, and, in lieu of paying the Northern District of New
York’s filing fee, seeks leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.)
I. IFP APPLICATION
Plaintiff declares that she is unable to pay the filing fee for this action. (See Dkt. No. 2.)
The undersigned has reviewed Plaintiff’s IFP application and determines she financially qualifies
to procced IFP. Therefore, Plaintiff’s IFP application is granted.1

1 Plaintiff is advised that she will still be required to pay any costs and fees that she may incur in
this matter, including, but not limited to, any copying fees or witness fees.
II. SCREENING OF THE COMPLAINT
A. Legal Standard
Under Section 1915(e), the Court must dismiss a complaint filed IFP if it determines that
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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
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), and interpret them to raise the “strongest [claims] that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotations
and citations omitted, emphasis in original).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a
finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’
when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an
indisputably meritless legal theory.”) (internal quotations and citation omitted). 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 the Complaint
Plaintiff alleges in her Complaint that money was withdrawn from her account at
Defendant SEFCU. (Dkt. No. 1.) She does not specify when or how much. Id. Plaintiff
requests that the Court orders SEFCU to reimburse her in the amount of $20,000. Id.2

C. The Court’s Analysis
Plaintiff provides almost no context to her allegations. More importantly, Plaintiff fails
to demonstrate this Court’s jurisdiction as she demonstrates neither federal question jurisdiction

2 Plaintiff has also filed three separate actions in this District against Citizens Bank alleging
someone withdrew money from her account. See Dobbs v. Citizens Bank et al., 1:10-cv-01487-
LEK-RFT, Dkt. No. 1(2010) (“Dobbs I”); Dobbs v. Citizen Bank, 1:20-cv-00627-GLS-CFH,
Dkt. No. 1 (2020) (“Dobbs II”); Dobbs v. Citizens Bank, 1:22-cv-01226-TJM-DJS, Dkt. No. 1
(2022) (“Dobbs III”). Dobbs I and Dobbs II were dismissed for failure to state a claim upon
which relief could be granted and lack of federal subject matter jurisdiction. On December 7,
2022, U.S. Magistrate Judge Daniel J. Stewart conducted an initial review in Dobbs III and
recommended dismissal of the complaint.
nor diversity jurisdiction. See Smith ex. rel. Bey v. Kelly, 12-CV-2319, 2012 WL 1898944, at *2
(E.D.N.Y. May 24, 2012) (court is obligated to analyze whether subject matter jurisdiction exists
as a part of § 1915(e) initial review and to dismiss the complaint when subject matter jurisdiction
is found lacking).

Although Plaintiff has used a complaint form alleging subject matter jurisdiction pursuant
to federal question, Plaintiff has failed to establish federal question jurisdiction as she has not set
forth a federal law claim. 28 U.S.C. § 1331 confers onto federal courts subject matter
jurisdiction over all federal questions, or “all civil actions arising under the Constitution, laws, or
treaties of the United States.” Federal question jurisdiction exists where the complaint
“establishes either that federal law creates the cause of action or that the plaintiff’s right to relief
necessarily depends on a resolution of a substantial question of federal law.” Franchise Tax Bd.
v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Even liberally construed,
Plaintiff identifies no statute under which her Complaint is brought and the Court can discern
none. Plaintiffs’ Complaint, at best, alleges possible state law claims for fraud in connection

with the transaction. Therefore, the Court finds there is no federal question jurisdiction.
To properly allege diversity jurisdiction, Plaintiff must allege (1) diversity of citizenship
between the parties, and (2) an amount in controversy that exceeds $75,000. See 28 U.S.C. §
1332(a). Here, Plaintiff cannot establish diversity jurisdiction because Plaintiff and Defendant
are both citizens of the same state, New York. Plaintiff provides that she lives in Albany, New
York and SEFCU is located in Albany, New York. Moreover, the amount in controversy is
$20,000. Therefore, the Court finds there is no diversity jurisdiction.
Accordingly, the undersigned recommends dismissing Plaintiff’s Complaint without
prejudice.3 Hollander v. Garrett, 710 F. App’x 35, 36 (2d Cir. 2018) (“[D]ismissal for subject
matter jurisdiction must be without prejudice.”). 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 replead 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). In
deference to Plaintiff’s pro se status and out of an abundance of caution, the Court recommends
granting Plaintiff leave to amend.
The Court advises Plaintiff that should she be permitted to amend her Complaint, any
amended pleading she submits must comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Any such amended complaint should specifically identify the legal theory or theories
that form the basis for her claim.

Plaintiff is cautioned that no portion of her prior Complaint shall be incorporated into her
amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth
all of the claims she intends to assert against the Defendant and must demonstrate that a case or
controversy exists between the Plaintiff and the Defendant which Plaintiff has a legal right to
pursue and over which this Court has jurisdiction. If Plaintiff is alleging that the named
Defendant violated a law, she should specifically refer to such law. Lastly, Plaintiff is further
cautioned that the filing of vexatious, harassing, or duplicative lawsuits may result in the

3 In light of the foregoing recommendation, Plaintiff is not prevented from filing a complaint in
an appropriate state court, should she wish to do so. However, the undersigned makes no finding
as to whether Plaintiff can successfully or properly bring the complaint in state court.
imposition of sanctions, including limitations on her 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 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.”); see, e.g., Johnson v. Progressive.com, 19-cv-11202-CM, 2020 WL 589127, at
*1 (S.D.N.Y. Feb. 5, 2020) (declining to grant pro se plaintiff leave to amend in light of the
plaintiff’s “abusive litigation history” and where amendment would be futile).
III. CONCLUSION

For the reasons sated herein, it is hereby
ACCORDINGLY, 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 AMEND; and it is further
ORDERED that the Clerk provide Plaintiff with 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).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 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).

Dated: December 13, 2022 —_~
Syracuse, New York
Theérése 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).

2012 WL 1898944 Court can best discern, Plaintiff is defending himself in an
Only the Westlaw citation is currently available. on-going criminal prosecution in the Suffolk County District
United States District Court, Court. According to the Complaint, during an appearance
E.D. New York. before Judge Kelley on May 4, 2012, Plaintiff was ordered
to undergo a mental evaluation. Plaintiff describes that, under
Matthew R. SMITH, ex rel. Kasiin Ali BEY, Plaintiff, the authority of the “Zodiac Constitution,” and in accordance
v. with the “Peace and Friendship Treaty of 1836,” the state
Chris Ann KELLY, Defendant. court lacks jurisdiction over him given that he is a Moorish–
American.
No. 12–CV–2319 (JS)(AKT).
| According to the Complaint, Plaintiff requested that Judge
May 24, 2012. Kelley provide Plaintiff with a “citation of authority to
presume jurisdiction over a Moorish American and to state
Attorneys and Law Firms the court's jurisdiction for the record.” Compl. at ¶ 5. Plaintiff
alleges that Judge Kelley failed to do so and therefore now
Matthew R. Smith, Ex Rel., Kasiin Ali Bey, Central Islip, NY,
Plaintiff “demand[s] [that] all proceedings cease until CHRIS
pro se.
ANN KELLEY properly established jurisdiction for the
No Appearance, for Defendant. record.” Compl. at ¶ 6. Plaintiff seeks to recover $100,000.00
for “libel” as well as $800 .00 for “filing, service and
handling” and “daily interest for enduring encumbrance of the
present libel” of $1,000.00 per day.
ORDER
SEYBERT, District Judge.
DISCUSSION
*1 Before the Court is the fee paid Complaint of pro
se plaintiff Matthew R. Smith, ex rel. Kasiin Ali Bey I. Standard of Review
(“Plaintiff”) filed pursuant to 42 U.S.C. § 1983 against the A district court is required to dismiss a complaint if the action
defendant, Hon. Chris Ann Kelley, Acting County Court is frivolous or malicious; fails to state a claim on which relief
Judge, Suffolk County District Court, 10th Judicial District may be granted; or seeks monetary relief against a defendant
(the “Defendant”).1 Notwithstanding Plaintiff's payment of who is immune from such relief. See 28 U.S.C. § 1915(e)(2)
the filing fee, for the reasons that follow, the Plaintiff's (B) (i-iii); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007).
Complaint is sua sponte DISMISSED pursuant to 28 U.S.C. Regardless of whether a plaintiff has paid the filing fee, a
§§ 1915(e)(2)(B)(i)-(iii). district court should dismiss a complaint, sua sponte, if it
determines that the action is frivolous. Fitzgerald v. First
1 The correct spelling of Judge Kelley's last name East Seventh Street Tenants Corp., 221 F.3d 362, 363–64 (2d
includes the letter “e” before the “y”. Plaintiff is Cir.2000). The Court is required to dismiss the action as soon
inconsistent in the spelling of this name, sometimes as it makes such a determination. 28 U.S.C. § 1915A(a).
it is “Kelly” and elsewhere it is “Kelley.” To avoid
any confusion, the Court corrects the spelling of An action is “frivolous” when either: (1) “ ‘the factual
Judge Kelley's name in the caption and the Clerk of contentions are clearly baseless,’ such as when allegations
the Court is directed to so amend the caption. 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
BACKGROUND (2d Cir.1998) (internal citations omitted). It is axiomatic that
pro se complaints are held to less stringent standards than
Plaintiff, who is alleged to be of Moorish–American pleadings drafted by attorneys and the Court is required to
nationality, seeks to recover monetary damages allegedly read the plaintiff's pro se complaint liberally, Erickson v.
incurred as a result of being ordered by Judge Kelley to submit Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081
S.Ct. 285, 50 L.Ed.2d 251 (1976)); Chavis v. Chappius, 618 Realty, No. 12–CV–1241(ENV), 2012 WL 1634161, *1 n.
F.3d 162 (2d Cir.2010), and to construe them “ ‘to raise the 1 (E.D.N.Y. May 9, 2012) (citing Bey v. Am. Tax Funding,
strongest arguments that [they] suggest [ ].’ “ Chavis, 618 No. 11–CV–6458, 2012 WL 1495368, at *6 (W.D.N.Y. Apr.
F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 27, 2012); Gordon v. Deutsche Bank, No. 11–CV–5090,
18, 24 (2d Cir.2010)). Moreover, at the pleadings stage of 2011 WL 5325399, at *1 n. 1 (E.D.N.Y. Nov. 3, 2011);
the proceeding, the Court must assume the truth of “all well- see, also Bey v. City of Rochester, 2012 WL 1565636, at *8
pleaded, nonconclusory factual allegations” in the complaint. (W.D.N.Y. Apr. 30, 2012) (citing El–Bey v. North Carolina,
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d No. 5:11–CV–0423FL, 2012 WL 368374, at *2 (E.D.N.C.
Cir.2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. Jan. 9, 2012) (unpublished) (“[A]ny claim based on the
1937, 1949–50, 173 L.Ed.2d 868 (2009)); see, also Jackson contention that Plaintiffs are not subject to the laws of North
v. Birmingham Board of Education, 544 U.S. 167, 171, 125 Carolina because of their alleged Moorish nationality and
S.Ct. 1497, 161 L.Ed.2d 361 (2005). the Treaty of Peace and Friendship of 1787 is frivolous.”),
recommendation adopted, 2012 WL 368369 (E.D.N.C. Feb.
*2 Further, “subject matter jurisdiction, because it involves 3, 2012) (unpublished); Bey v. American Tax Funding, No.
the court's power to hear a case, can never be forfeited or 11–CV–6458(CJS), 2012 WL 1498368, at *6 (W.D.N.Y.
waived.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. Apr. 27, 2012) (“[Plaintiffs'] purported status as a Moorish–
1781, 152 L.Ed.2d 860 (2002). The subject matter jurisdiction American citizen does not enable him to violate state and
of the federal courts is limited. Federal jurisdiction exists only federal laws without consequence.”); Gordon v. Deutsche
when a “federal question” is presented (28 U.S.C. § 1331), Bank Nat. Trust Co., No. 11–CV–5090 (WFK), 2011 WL
or where there is “diversity of citizenship” and the amount in 5325399, *1, n. 1 (E.D.N.Y. Nov. 3, 2011) (“Plaintiff's
controversy exceeds $75,000.00 (28 U.S.C. § 1332). There is suggestion that as a member of the ‘Moorish–American”
an independent obligation for a federal court to “determine nation he is immune from the laws of the United States is
whether subject matter jurisdiction exists, even in the absence misguided”) (citing Bey v. Bailey, No. 09–CV–8416, 2010
of a challenge from any party.” Arbaugh v. Y & H Corp., WL 1531172, at *4 (S.D.N.Y.Apr.15, 2010) (“petitioner's
546 U.S. 500, 514 (2006) (citation omitted). When a federal claim that he is entitled to ignore the laws of the State of New
court concludes that it lacks subject matter jurisdiction, it York by claiming membership in the ‘Moorish–American’
must dismiss the complaint in its entirety. Fed.R.Civ.P. 12(h) nation is without merit ....”) (add'l citation omitted).
(3).
*3 Because the Court is required to dismiss a civil action
“at any time of the court determines that ... the action ...
II. Application is frivolous,” Plaintiff's Complaint is dismissed. The instant
Having carefully reviewed Plaintiff's Complaint, the Court Complaint is clearly frivolous given Plaintiff's claim that he
finds that it fails to state a plausible claim. As a threshold is not subject to the jurisdiction of the New York state court
matter, Plaintiff has not properly invoked this Court's subject because he is a Moorish American. Neitzke v. Williams, 490
matter jurisdiction. Plaintiff has not alleged a federal question U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (a
nor has he satisfied the diversity requirement because claim is “frivolous” if it lacks an arguable basis in either law
Plaintiff, an alleged New York resident, seeks to sue a New or fact). Clearly, the allegations in the instant Complaint are
York Defendant, namely Judge Kelley, Acting County Court based upon an indisputably meritless legal theory and are thus
Judge, Suffolk County District Court, 10th Judicial District. dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)B)
(i).
Even if the Court's subject matter jurisdiction were
established, which it is not, the Complaint must be dismissed Even if the Plaintiff's claims were not frivolous, Plaintiff
because it is frivolous. Liberally read, see Hughes v. Rowe, cannot recover damages from the Defendant, a sitting New
449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed. 163 (1980), the York State Court Judge, Suffolk County District Court, since
gravamen of Plaintiff's Complaint is that he is not subject as a judge, she is entitled to absolute judicial immunity
to the jurisdiction of the New York state court and therefore as well Eleventh Amendment Immunity. Mahapatra v.
does not have to comply with the order entered by Judge Comstock, 141 F.3d 1152 (2d Cir.1998) (“[T]he district court
Kelley. The law is clear that Moorish Americans, like all properly dismissed the claims for damages based on absolute
civil damages for judicial acts performed in their judicial U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
capacities.”) (citing Mireles v. Waco, 502 U.S. 9, 11–12, 112
S.Ct. 286, 116 L.Ed.2d 9 (1991)); Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 53–55, 116 S.Ct. 1114, 134 L.Ed.2d CONCLUSION
252 (1996); Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). For the reasons set forth above, the Complaint is sua sponte
dismissed with prejudice. The Clerk of the Court is directed
Given that the Complaint is based on an indisputably to close this case.
meritless legal theory, the Court declines to afford Plaintiff
leave to amend his Complaint, as any amendment would be SO ORDERED.
futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
All Citations
any appeal from this Order would not be taken in good
faith and therefore in forma pauperis status is denied for the Not Reported in F.Supp.2d, 2012 WL 1898944
End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.
2017 WL 3172999 Plaintiff alleges that Defendants Jacobson and Gray appeared
Only the Westlaw citation is currently available. at a conference before the NYSDHR on behalf of JBFCS.
United States District Court, N.D. New York. See Dkt. No. 1 at 5-6. Plaintiff alleges that, at the time of
this conference, Defendants Jacobson and Gray were not
Thomas J. MORAN, Plaintiff, appropriately licensed to practice law in New York State
v. through the New York State Unified Court System. See id.
PROSKAUER ROSE LLP; Jerold D. Jacobson; Plaintiff alleges that he told two of NYSDHR's employees
and Keisha Ann Grace Gray, Defendants. that “allowing two attorneys with no valid law licenses into
this conference to practice law is fraudulent.” Id. at 6.
1:17-cv-00423 (MAD/TWD)
| Moreover, Plaintiff alleges that Defendant Jacobson wrote
Signed 07/26/2017 a “fraudulent” email response to Plaintiff's NYSDHR
complaint since Defendant Jacobson's “law license [was]
Attorneys and Law Firms expired at the time the [r]esponse was sent.” Id. Plaintiff
also argues that, because of Defendant Jacobson's personal
APPEARANCES: THOMAS J. MORAN, 500 16th St., Apt.
relationship with the JBFCS, it is inappropriate for him
203, Watervliet, New York 12189, Plaintiff, pro se.
“to handle the issues of the Jewish Board.” Id. at 7.
Furthermore, Plaintiff claims that Defendant Gray “tricked
[Maria] Di Cosimo of Lexis-Nexis into providing Ms.
ORDER Gray with information that was obtained through Ms. Di
Cosimo's connection with Lexis-Nexis fraudulently.” Id.
Mae A. D'Agostino, U.S. District Judge
Plaintiff requests $240 million in total from Defendants and
*1 Plaintiff commenced this action pro se on April 17, an injunction preventing Defendant Proskauer Rose from
2017 against Proskauer Rose LLP (“Proskauer Rose”), “continuing its practice of allowing attorneys with no law
Jerold D. Jacobson (“Defendant Jacobson”), and Keisha licenses to practice law in the State of New York as well as
Ann Grace Gray (“Defendant Gray”). See Dkt. No. 1. In the United States.” Id. at 8.
an Order and Report-Recommendation dated May 1, 2017,
Magistrate Judge Dancks granted Plaintiff's application to “[I]n a pro se case, the court must view the submissions
proceed in forma pauperis for filing purposes only and by a more lenient standard than that accorded to ‘formal
denied Plaintiff's motion for appointment of counsel. See pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
Dkt. No. 6 at 2, 9. In reviewing the sufficiency of the F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v.
complaint, Magistrate Judge Dancks concluded that the Court Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
lacks subject matter jurisdiction over Plaintiff's claims, and The Second Circuit has opined that the court is obligated
therefore, despite Plaintiff's pro se status, recommended that to “make reasonable allowances to protect pro se litigants”
Plaintiff's complaint be dismissed with prejudice. See id. at from inadvertently forfeiting legal rights merely because they
9. On May 26, 2017, Plaintiff filed objections to Magistrate lack a legal education. Id. (quoting Traguth v. Zuck, 710
Judge Dancks's Order and Report-Recommendation. See Dkt. F.2d 90, 95 (2d Cir. 1983)). However, “[t]he right of self-
No. 7. representation does not exempt a party from compliance with
the relevant rules of procedural and substantive law.” Massie
According to the complaint, Proskauer Rose is a global law v. Ikon Office Solutions, Inc., 381 F. Supp. 2d 91, 94 (N.D.N.Y.
firm and Defendants Jacobson and Gray are attorneys with 2005) (quoting Clarke v. Bank of New York, 687 F. Supp. 863,
Proskauer Rose. See Dkt. No. 1 at 5. Plaintiff asserts that 871 (S.D.N.Y. 1988)).
Proskauer Rose is counsel for non-party Jewish Board of
Family and Children's Services (“JBFCS”), Plaintiff's former *2 In reviewing a report and recommendation, a district
employer. See id. at 5-6. As Magistrate Judge Dancks noted, court “may accept, reject, or modify, in whole or in part,
according to publicly available documents, Plaintiff filed a the findings or recommendations made by the magistrate
complaint with the New York State Division of Human Rights judge.” 28 U.S.C. § 636(b)(1)(C). When a party makes
specific objections to a magistrate judge's report, the district
the objections. See id.; Farid v. Bouey, 554 F. Supp. 2d regulates only the Government, not private parties, a litigant
301, 307 (N.D.N.Y. 2008). When a party fails to make claiming that his constitutional rights have been violated must
specific objections, the court reviews the magistrate judge's first establish that the challenged conduct constitutes ‘state
report for clear error. See Farid, 554 F. Supp. 2d at 307; action.’ ” Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178,
see also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 187 (2d Cir. 2005) (quoting United States v. Int'l Bhd. of
2725126, *1 (S.D.N.Y. Nov. 29, 2004). As mentioned, Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)). The conduct
Plaintiff has submitted objections to the Order and Report- of a private actor may be considered state action when the
Recommendation. See Dkt. No. 7. private actor “is a willful participant in joint activity with the
State or its agents.” Ciambriello v. Cty. of Nassau, 292 F.3d
Federal courts are courts of limited jurisdiction and may not 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress & Co.,
preside over cases absent subject matter jurisdiction. Exxon 398 U.S. 144, 152 (1970)).
Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552
(2005). Federal jurisdiction is available only when a “federal *3 Defendants Jacobson and Gray are private attorneys
question” is presented or when the plaintiff and the defendant working for a private law firm. See Dkt. No. 1 at 5. Plaintiff
are of diverse citizenship and the amount in controversy does not allege that Defendants had any affiliation with the
exceeds $75,000. 28 U.S.C. §§ 1331, 1332. When a court State of New York beyond their licensure, and therefore,
lacks subject matter jurisdiction, dismissal of the complaint they cannot be deemed “state actors” under Section 1983.
is mandatory. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 See Licari v. Voog, 374 Fed. Appx. 230, 231 (2d Cir.
(2006). Federal courts “have an independent obligation to 2010) (“[P]rivate attorneys—even if the attorney was court
determine whether subject-matter jurisdiction exists, even in appointed—are not state actors for the purposes of § 1983
the absence of a challenge from any party.” Id. (citing Ruhrgas claims.”) (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66
AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). (2d Cir. 1997)). Furthermore, Proskauer Rose's registration
as a domestic limited liability partnership with the State of
In order to invoke “federal question” jurisdiction, a plaintiff's New York does not render it a “state actor.”1 See Cranley
claims must arise “under the Constitution, laws, or treaties v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir.
of the United States.” 28 U.S.C. § 1331. Here, as Magistrate 2003) (citing S.F. Arts & Athletics, Inc. v. U.S. Olympic
Judge Dancks concluded, Plaintiff has failed to allege a claim Comm., 483 U.S. 522, 543-44 (1987)). Plaintiff has also failed
that arises under the Constitution or laws of the United States to allege that Defendants conspired with any state actor to
of America. Plaintiff's main allegation surrounds the state violate his constitutional rights. Accordingly, Plaintiff has
bar licensure of two private attorneys employed by a private failed to allege a cause of action that provides this Court with
limited liability partnership. See Dkt. No. 1 at 5. There is no subject matter jurisdiction under 28 U.S.C. § 1331. Plaintiff's
federal claim that can be inferred from the facts alleged. objections offer nothing to cure this defect.
Plaintiff has submitted his allegations on a form that is 1 As Magistrate Judge Dancks noted, Proskauer Rose
provided by the Court for pro se litigants to file civil rights
is listed as a domestic registered limited liability
complaints pursuant to 42 U.S.C. § 1983 (“Section 1983”).
partnership with the New York State Division of
See id. at 1. However, there is no indication from Plaintiff's
Corporations. See Dkt. No. 6 at 8 n.4.
allegations that a Section 1983 claim could be supported. In
his objections, Plaintiff agreed with Magistrate Judge Dancks As Magistrate Judge Dancks also found, Plaintiff has failed to
that the reason he used a civil rights complaint form was establish a basis for diversity jurisdiction under 28 U.S.C. §
because it was provided to him by the Court. See Dkt. No. 7 1332. See Dkt. No. 6 at 8. Diversity jurisdiction is only proper
at 4. where “all of the adverse parties in a suit [are] completely
diverse with regard to citizenship.” E.R. Squibb & Sons, Inc.
To state a Section 1983 claim, “a plaintiff must allege (1) v. Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir.
‘that some person has deprived him of a federal right,’ and 1998) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267,
(2) ‘that the person who has deprived him of that right acted 267 (1806)). For the purposes of diversity jurisdiction, the
under color of state ... law.’ ” Velez v. Levy, 401 F.3d 75, 84 citizenship of limited liability partnerships, like Proskauer
(2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 Rose, is determined by the citizenship of all of its members.
(1990); Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 CV-0336, 2012 WL 1977972, *6 (N.D.N.Y. June 1, 2012).
F.3d 48, 51-52 (2d Cir. 2000).
As such, Plaintiff's complaint is dismissed with prejudice.3
Here, the complaint states that Plaintiff lives in Watervliet, 3 Since the Court is dismissing Plaintiff's complaint
New York, and that Defendants Jacobson and Gray are also with prejudice, the Court will not address Plaintiff's
citizens of New York. See Dkt. No. 1 at 1-2, 5. Proskauer objection to Magistrate Judge Dancks's denial of
Rose's citizenship is determined by the citizenship of each Plaintiff's motion for appointment of counsel.
of its members, including Defendants Jacobson and Gray.2
*4 Accordingly, the Court hereby
See id. As such, all parties are citizens of New York, and
this Court lacks diversity jurisdiction over Plaintiff's claims. ORDERS that Magistrate Judge Dancks's Order and Report-
Accordingly, Plaintiff's complaint is dismissed. Recommendation (Dkt. No. 6) is ADOPTED in its entirety;
and the Court further
2 Defendants Jacobson and Gray are listed
as partners on the Proskauer Rose ORDERS that Plaintiff's complaint (Dkt. No. 1) is
website. Professionals, Proskauer Rose, http:// DISMISSED in its entirety without leave to amend; and
www.proskauer.com/professionals/ (last visited the Court further
July 13, 2017).
When a pro se complaint fails to state a cause of action, the
ORDERS that the Clerk of the Court shall enter judgment in
Defendants' favor and close this case; and the Court further
court generally “should not dismiss without granting leave to
amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.”
ORDERS that the Clerk of the Court shall serve a copy of
this Order on Plaintiff in accordance with the Local Rules.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal
quotation and citations omitted). Of course, an opportunity
to amend is not required where “[t]he problem with [the
IT IS SO ORDERED.
plaintiff's] cause of action is substantive” such that “better
pleading will not cure it.” Id. (citation omitted). As Magistrate All Citations
Judge Dancks found, lack of subject matter jurisdiction is a
substantive defect that cannot be cured by better pleading. See Not Reported in Fed. Supp., 2017 WL 3172999
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
End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.
2020 WL 589127 contentions are clearly baseless ...; or (2) the claim is based
Only the Westlaw citation is currently available. on an indisputably meritless legal theory.”) (internal quotation
United States District Court, S.D. New York. marks and citation omitted).
Robert W. JOHNSON, Plaintiff,
v. BACKGROUND AND DISCUSSION
PROGRESSIVE.COM, et al., Defendants.
Plaintiff filed this complaint against multiple insurance
19-CV-11202 (CM) companies and other entities, including Progressive, Axxcess
| Insurance Agencies Ltd., New York Automobile Insurance
Signed 02/05/2020 Plan, Global Liberty Insurance Company, Arizona Premium
Finance, Chevrolet, ADESA, Nationwide, Victoria Fire &
Attorneys and Law Firms Casualty Company, Allstate, Geico, and AAA. Plaintiff seeks
Robert W. Johnson, Bronx, NY, pro se. “$999 trillion” in punitive damages, “$999 billion for future
pain and suffering,” and “100% ownership of corporation
assets, bank accounts & equities.” The complaint contains no
facts.
ORDER OF DISMISSAL
COLLEEN McMAHON, Chief United States District Judge: Even when read with the “special solicitude” due pro se
pleadings, Triestman, 470 F.3d at 474-75, Plaintiff's claims
*1 Plaintiff Robert W. Johnson, of the Bronx, New York, rise to the level of the irrational, and there is no legal theory
filed this complaint pro se and in forma pauperis (IFP). The on which he can rely. See Denton, 504 U.S. at 33; Livingston,
Court dismisses this action for the reasons set forth below. 141 F.3d at 437.
District courts generally grant a pro se plaintiff an opportunity
to amend a complaint to cure its defects, but leave to amend is
STANDARD OF REVIEW
not required where it would be futile. See Hill v. Curcione, 657
The Court must dismiss a complaint, or portion thereof, that is F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861
frivolous or malicious, fails to state a claim upon which relief F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's
may be granted, or seeks monetary relief from a defendant complaint cannot be cured with an amendment, and in light
who is immune from such relief. 28 U.S.C. §§ 1915(e)(2) of Plaintiff's abusive litigation history, discussed below, the
(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Court declines to grant Plaintiff leave to amend.
Cir. 2007). While the law mandates dismissal on any of these
grounds, the Court is obliged to construe pro se pleadings Plaintiff has filed scores of cases around the country in
liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), connection with a 2017 car accident in Buffalo, New York,
and interpret them to raise the “strongest [claims] that they and this complaint is consistent with his pattern of vexatious
suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, and frivolous litigation. In Johnson v. Wolf, ECF 1:19-
474-75 (2d Cir. 2006) (internal quotation marks and citations CV-7337, 5 (S.D.N.Y. Nov. 5, 2019), Judge Wood, after
omitted) (emphasis in original). discussing Plaintiff's extensive litigation history, dismissed
Plaintiff's action as frivolous, for failure to state a claim upon
A claim is frivolous when it “lacks an arguable basis either which relief may be granted, and for seeking monetary relief
in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324-25 against Defendants who are immune from such relief; he also
(1989), abrogated on other grounds by Bell Atl. Corp. v. ordered Plaintiff to show cause why he should not be barred
Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, from filing any future action IFP in this Court without prior
504 U.S. 25, 32-33 (1992) (holding that “finding of factual permission). Plaintiff did not file a declaration as directed,
frivolousness is appropriate when the facts alleged rise to the but instead, on November 13, 2019, Plaintiff filed a notice of
level of the irrational or the wholly incredible”); Livingston appeal, and that appeal is pending.1
A review of the Public Access to Court Electronic
Records (PACER) system reveals that since
November 5, 2019, Plaintiff has filed ten new CONCLUSION
actions in other federal district courts and,
The Clerk of Court is directed to mail a copy of this order to
including this case, four new actions in this Court.
Plaintiff and note service on the docket.
See Johnson v. New York State Ins. Fund, ECF
1:19-CV-11831, 2 (S.D.N.Y. filed Dec. 20. 2019);
The Court dismisses this action as frivolous. 28 U.S.C. §
Johnson v. Progressive.com, ECF 1:19-CV-11202,
1915(e)(2)(B)(i).
2 (S.D.N.Y. filed Dec. 5, 2019); Johnson v. New
York State Dep't of Trans., ECF 1:19-CV-11127, 2
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
(S.D.N.Y. filed Dec. 2, 2019).
appeal from this order would not be taken in good faith, and
*2 By order dated January 27, 2020, entered in Johnson v. therefore in forma pauperis status is denied for the purpose
Town of Onondaga, ECF 1:19-CV-11128, 4 (CM) (S.D.N.Y. of an appeal. Cf. Coppedge v. United States, 369 U.S. 438,
Jan. 27, 2020), this Court also directed Plaintiff to show cause 444-45 (1962) (holding that an appellant demonstrates good
why a filing injunction should not be imposed. And at least faith when he seeks review of a nonfrivolous issue).
one other court has already barred Plaintiff from filing pro
se complaints without prior permission. See Johnson v. Abel,
No. 19-CV-2685 (E.D. Ohio Aug. 5, 2019) (deeming Plaintiff SO ORDERED.
a “vexatious” litigant and barring him from filing new pro se
All Citations
actions without prior leave of court).
Not Reported in Fed. Supp., 2020 WL 589127
The Court's prior warnings remain in effect.
End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315420. Public record. Not legal advice.