Opinion

Miller v. Catholic Charities

Court: District Court, N.D. New York
Filed: Feb 20, 2024
Cited by: 0 cases
Authority: More cited than 27.0%

“28 U.S.C. § 1332 requires complete diversity between all plaintiffs and all defendants . . . .”

How later courts described this case

“28 U.S.C. § 1332 requires complete diversity between all plaintiffs and all defendants . . . .”
the plaintiff bears the burden of establishing subject matter jurisdiction
a “statement, devoid of any reference to | specific findings or recommendations to which [the plaintiff] Signed February 1, 2023 objected and why, and unsupported by legal authority, was not sufficient to preserve” a claim
citation does not state a claim ‘arising under the Constitution, laws, omitted

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_______________________________________________

KHALID MILLER,

Plaintiff,

v. 5:24-cv-0040

(GTS/TWD)

CATHOLIC CHARITIES et al,

Defendants.

_______________________________________________

APPEARANCES: OF COUNSEL:

KHALID MILLER

Plaintiff, pro se

91000170

Onondaga County Justice Center

555 South State Street

Syracuse, NY 13202

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT-RECOMMENDATION AND ORDER

I. INTRODUCTION

The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff

Khalid Miller (“Plaintiff”) alleging Catholic Charities, Jane Doe, and John Doe caused him pain,

suffering, and mental anguish. Dkt. No. 1. Plaintiff, who is currently confined at the Onondaga

County Justice Center, has not paid the filing fee for this action and seeks leave to proceed in

forma pauperis (“IFP”). Dkt. Nos. 4, 5.

II. IFP APPLICATION

“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court

without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No.

1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent,

incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently

pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate

accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir.

2010)); see also 28 U.S.C. § 1915A(c) (“As used in this section, the term ‘prisoner’ means any

person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,

probation, pretrial release, or diversionary program.”).

Upon review, Plaintiff’s IFP application demonstrates economic need. Dkt. No. 4.

Because Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and has filed the

inmate authorization form required in this District, Dkt. No. 5, he is granted permission to

proceed IFP.1

III. BACKGROUND

Plaintiff alleges, on an unspecified date, he became reacquainted with Justin Cooper, but

was concerned by Cooper’s behavior. Dkt. No. 1 at 2.2 Months later, while Plaintiff and Cooper

were at the Rescue Mission, Cooper informed Plaintiff he had just moved to an apartment,

located at “1st North St.” Id. at 3. Plaintiff and Cooper traveled to the apartment, but the lights

had not been turned on. Id. When the pair returned approximately four days later, the lights

were on. Id.

1 Although his IFP application has been granted, Plaintiff will still be required to pay fees that he

may incur in this action, including copying and/or witness fees.

2 Citations to Plaintiff’s submissions will refer to the pagination generated by CM/ECF, the

Court’s electronic filing system. Unless otherwise indicated, excerpts from the record are

reproduced exactly as they appear in the original and errors in spelling, punctuation, and

grammar have not been corrected.

Over an unspecified time period, Plaintiff “would stay there for weeks at a time.” Id.

However, Plaintiff removed himself from the apartment on multiple occasions “because of

Justin’s behavior . . . .” Id. Plaintiff avers Cooper “would get locked up and be out in days and

would lose his keys.” Id. Plaintiff would periodically visit Cooper and “there would be all type

of People over there, Disrespecting His place, It would be in disarray, So I would have to kick

them out knowing they meant Justin no good.” Id.

In February of 2023, “Justin Really was out of control . . . .” Id. However, “throughout

all of these events not one time had his case worker came to see how He was doing.” Id. at 3-4.

After not having seen Cooper for two months, Plaintiff went to the apartment on Easter to invite

Cooper to church but discovered Cooper “had been arrested and His place was unlocked and

unoccupied and in disarray.” Id. at 4.

After church, Plaintiff returned to the apartment and “cleaned up the place went grocery

shopping and bought a TV some other furniture Lamps, Bed Frame, dresser, Coffee Table, end

Tables, Rolling Tray cart for serving, Coat Rack Second Hand Keyboard Stand for the keyboard,

Air Fryer, Etc. Cleaning Supplies and kept up with His court dates in contemplation that He

would be home soon.” Id. Cooper remained incarcerated throughout a subsequent, also

unspecified, time period, “But in between that time his worker came twice.” Id. On the first

occasion, Plaintiff states “she was totally unprofessional and just plain Rude, even after I told her

who I was.” Id.

Plaintiff left the apartment on his own accord, but returned after one week. Id. Plaintiff

did not see the case worker from the time he returned to the apartment “until some time In July

shortly after the 4th, When she came with a crew of maintenance workers. A white guy and an

African American Guy who came up stairs.” Id. Plaintiff avers the case worker told him,

“because Justin wasn’t coming . . . ” but the document appears to be missing at least one page.

See id.

Plaintiff identified “Catholic Charities” as the defendant in his caption and listed Jane

Doe, “Case Worker for Justin Cooper” and John Doe, “Assisting Maintenance Worker who

Accompanied Justin Cooper’s Worker” as defendants. Id. at 1-2. His complaint lists three

causes of action:

• Compensation for Pain and Suffering my eyes are not the

same, I see refracted light (like seeing stars periodically

everyday, Allday) and slight headaches, and a bruised I socket

of the eye

• Compensation for Mental Anguish Replacement of my

Keyboard

• Parties Involved to be reprimanded for not being professional,

(Fired) and not Holding to the standards of Catholic Charities

Mission Statement

Id. at 5. Plaintiff requests “3 million dollars for Pain & Suffering mental anguish and lifetime

Living arrangements paid for by Catholic Charites.” Id. at 6.

IV. LEGAL STANDARD

Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis

complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief against a defendant who is immune from such relief. See 28

U.S.C. § 1915A(b)(1)-(2); § 1915(e)(2)(B)(i)-(iii); 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) (“If the court determines

at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

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 arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted). 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007);

see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[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.”).

Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil

Procedure. 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).3 This short and plain statement of the claim must be “plausible on its face.” Twombly,

550 U.S. at 570. “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).

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)

(citations omitted). However, “the 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.

3 See also Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading

may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity,

each claim founded on a separate transaction or occurrence--and each defense other than a

denial--must be stated in a separate count or defense.”).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id.

Moreover, a court should not dismiss a pro se complaint “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.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)

(citation and internal quotation marks omitted). However, an opportunity to amend is not

required where “the problem with [the plaintiff’s] causes of action is substantive” such that

“better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

IV. ANALYSIS

Federal courts exercise limited jurisdiction pursuant to Article III of the Constitution. A

court may exert subject matter jurisdiction over “all civil actions arising under the Constitution,

laws, or treaties of the United States” and civil actions where there is diversity of citizenship

between the parties and the amount in controversy exceeds the sum of $75,000. 28 U.S.C. §§

1331, 1332. In the absence of a basis for exercising jurisdiction, the case must be dismissed.

Fed. R. Civ. P. 12(h)(3); United States v. Cotton, 535 U.S. 625, 630 (2002); see also Arbaugh v.

Y&H Corp., 546 U.S. 500, 513 n.10 (2006) (“A claim invoking federal-question jurisdiction

under 28 U.S.C. § 1331 . . . may be dismissed for want of subject-matter jurisdiction if it is not

colorable, i.e., if it is ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is

‘wholly insubstantial and frivolous.’”) (citing Bell v. Hood, 327 U.S. 678, 682-83 (1946))

(additional citations omitted). “[F]ailure of subject matter jurisdiction is not waivable and may

be raised at any time by a party or by the court sua sponte.” Lyndonville Sav. Bank & Trust Co.

v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000).

Here, even afforded a liberal construction, Plaintiff’s complaint has failed to allege a

federal claim such that the Court’s federal question subject matter jurisdiction under 28 U.S.C. §

1331 may be invoked. See generally, Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000) (the plaintiff bears the burden of establishing subject matter jurisdiction).

It appears Plaintiff seeks to invoke federal question subject matter jurisdiction given that

he utilized a form civil rights compliant pursuant to 42 U.S.C. § 1983. See Dkt. No. 1 at 1.

However, “[t]o state a valid claim under 42 U.S.C. § 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. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v.

Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)); see also Bennett v. Bailey, No. 5:20-CV-0903

(GTS/ATB), 2020 WL 5775940, at *2 (N.D.N.Y. Aug. 17, 2020) (“The requirement that the

defendant acted under ‘color of state law’ is jurisdictional.”) (citation omitted), report and

recommendation adopted, 2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). “Section 1983 itself

creates no substantive rights; it provides only a procedure for redress for the deprivation of rights

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

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)) (additional citation omitted).

In this case, Plaintiff has not alleged Catholic Charities, the Jane Doe caseworker, or the

John Doe maintenance worker acted under the color of state law; therefore, they cannot be sued

under § 1983. See Basile v. Connolly, 538 F. App’x 5, 7 (2d Cir. 2013) (Summary Order)

(“private individuals who cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation

that they acted under color of state law.”). Nor has Plaintiff identified any violation of a right

guaranteed by federal law or the U.S. Constitution such that his right to relief requires resolution

of a substantial question of federal law. Dobbs v. SEFCU, No. 1:22-CV-1228 (LEK/TWD),

2022 WL 17617752, at *2 (N.D.N.Y. Dec. 13, 2022) (“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.’”)

(citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)),

report and recommendation adopted, 2023 WL 1431633 (N.D.N.Y. Feb. 1, 2023).

Moreover, there is nothing in Plaintiff’s complaint which would indicate the Court may

exercise diversity jurisdiction pursuant to 28 U.S.C. § 1332. While Plaintiff’s requested three

million dollars in damages is greater than the amount in controversy requirement, see Dkt. No. 1

at 6; 28 U.S.C. § 1332(a), his complaint is completely devoid of information concerning the

Defendants’ domicile; therefore, Plaintiff has failed to invoke diversity jurisdiction. See

generally, Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992) (“28 U.S.C. § 1332 requires

complete diversity between all plaintiffs and all defendants . . . .”); see also, e.g., Rashid v.

Sufyan, No. 1:16-CV-1094 (FJS/DJS), 2016 WL 7077082, at *3 (N.D.N.Y. Nov. 4, 2016) (“For

diversity jurisdiction purposes, an individual’s citizenship is the individual’s domicile, which is

determined on the basis of two elements: (1) physical presence in a state and (2) the intent to

make the state a home.”) (internal quotations and citations omitted), report and recommendation

adopted, 2016 WL 7053412 (N.D.N.Y. Dec. 5, 2016). Accordingly, the Court recommends

dismissal of Plaintiff’s complaint for lack of subject matter jurisdiction.

As previously stated, before dismissing a pro se complaint or any part of the complaint

sua sponte, the Court should generally afford the plaintiff an 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). Because the Court lacks subject matter

jurisdiction, the Court must recommend dismissing the action without prejudice. Hollander v.

Garrett, 710 F. App’x 35, 36 (2d Cir. 2018) (Summary Order); see also Humphrey v. Syracuse

Police Dep’t, 758 F. App’x 205, 206-07 (2d Cir. 2019) (Summary Order) (explaining, where a

court dismisses a complaint for lack of subject matter jurisdiction, the court does “not have the

power to reach the merits and dismiss the claims against the defendants for failure to state a

claim, or to eventually dismiss the complaint with prejudice for failure to file a proposed

amended complaint.”) (citing Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 54-55 (2d

Cir. 2016)). Therefore, the Court recommends granting Plaintiff leave to amend.

The Court advises Plaintiff that should he be permitted to amend his complaint, any

amended pleading he submits to this Court 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 his claim. Plaintiff is 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 the Plaintiff and the

Defendants which Plaintiff has a legal right to pursue and over which this Court has jurisdiction.

If Plaintiff is alleging the Defendants violated a law, he should specifically refer to such law. Of

course, Plaintiff may also pursue his claims in state court if appropriate.

V. CONCLUSION

WHEREFORE, it is hereby

ORDERED that Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 4) is

GRANTED, and it is

RECOMMENDED that Plaintiff's claims be DISMISSED WITHOUT PREJUDICE

AND WITH LEAVE TO AMEND; and it is further

ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation

and Order, along with copies of the unpublished decisions cited herein in accordance with the

Second Circuit decision in 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 (14) days within which to

file written objections to the foregoing report.4 Such objections shall be filed with the Clerk of

the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) 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); Fed. R. Civ. P. 72.

IT IS SO ORDERED.

Dated: February 20, 2024

Syracuse, New York /

Theérése Wiley Dancks

United States Magistrate Judge

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

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

seventeen days from the date the Report-Recommendation and Order 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. P. 6(a)(1)(C).

2010 WL 5185047 York State Department of Correctional Services, commenced

Only the Westlaw citation is currently available. this action on or about January 12, 2009 by submitting his

United States District Court, complaint to the Court's Pro Se office. Plaintiff alleges, in

S.D. New York. pertinent part, that he has “a non-healing ulcer that is gane

green [sic ]” and that defendant Bernstein “did not want

David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009

v. (Docket Item 2) (“Compl.”), at 3).

BERNSTEIN, MD, Defendant.

The action was originally commenced against two defendants

No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed

| as to Dr. Finkelstein because the complaint contained no

Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order

dated February 18, 2010 (Docket Item 9)).

REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr.

Bernstein—filed the current motion. Plaintiff failed to submit

1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an

Order advising plaintiff that if he wished to oppose the

the Honorable Leonard B. Sand, United States

motion, he must submit his opposition by September 15, 2010

District Judge, granted plaintiff's application for in

and that after that date I would consider the motion fully

forma pauperis status based on plaintiff's ex parte

submitted and ripe for decision (Order dated August 20, 2010

submission (Docket Item 1). Although the present

(Docket Item 15)). The only submission plaintiff has made

application seeking to revoke plaintiff's in forma

in response to my Order is a multi-part form issued by the

pauperis status is non-dispositive, I address it by

New York State Department of Correctional Services entitled

way of a report and recommendation to eliminate

“Disbursement or Refund Request.”2 By this form, plaintiff

any appearance of a conflict between the decision

appears to request that the New York State Department of

of a district judge and that of a magistrate judge.

Correctional Services pay the filing fee for this action. The

form is marked “Denied.”

PITMAN, United States Magistrate Judge.

*1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers,

States District Judge, and it has not been docketed by the Clerk of the

Court. The form will be docketed at the time this

Report and Recommendation is issued.

I. Introduction

By notice of motion dated March 4, 2010 (Docket Item 11),

III. Analysis

defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke

28 U.S.C. § 1915 permits an indigent litigant to commence

plaintiff's in forma pauperis (“IFP”) status on the ground that

an action in a federal court without prepayment of the filing

plaintiff has previously had at least three Section 1983 actions

fee that would ordinarily be charged. Although an indigent,

dismissed as frivolous, malicious or failing to state a claim

incarcerated individual need not prepay the filing fee at the

upon which relief could be granted, and has not shown that he

time at the time of filing, he must subsequently pay the fee,

is in imminent danger of serious physical injury. Defendant

to the extent he is able to do so, through periodic withdrawals

further seeks an order directing that the action be dismissed

from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.

unless plaintiff pays the full filing fee within thirty (30) days.

City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent

For the reasons set forth below, I respectfully recommend that

abuse of the judicial system by inmates, paragraph (g) of

defendant's motion be granted.

this provision denies incarcerated individuals the right to

proceed without prepayment of the filing fee if they have

II. Facts repeatedly filed meritless actions, unless such an individual

Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David

curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In

judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that

Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN,

assigned to him by the New York State Department

of Correctional Services (“DOCS”) is 94–B–0694

*2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records

a civil action or appeal a judgment submitted by plaintiff in connection with his

in a civil action or proceeding under application for IFP status indicate that DIN 94–

this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition,

3 or more prior occasions, while the DOCS form described in footnote two bears

incarcerated or detained in any facility, the docket number of this action, but is signed in

brought an action or appeal in a court the name of Dennis Nelson and was sent in an

of the United States that was dismissed envelope identifying the sender as Dennis Nelson.

on the grounds that it is frivolous, A subsequent action has been filed in this Court

malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis

which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same

prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has

serious physical injury. submitted nothing to controvert the assertion in

defendant's papers that David Cash and Dennis

Nelson are the same person. In light of all these

28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis

Nelson are both names used by plaintiff.

If an inmate plaintiff seeks to avoid prepayment of the filing

fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),

there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff

asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care

F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable

Thomas J. McAvoy, United States District Judge,

Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate

in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and

The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had

plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had

occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1,

*7.

• In 2005, plaintiff commenced an action in the United

States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)

York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),

Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status

WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three

the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under

District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent

Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215

United States Magistrate Judge, that plaintiff had at *1–*2.

brought three or more prior actions that had been

• Finally, in Nelson v. Chang, No. 08–CV–1261

dismissed for failure to state a claim and that plaintiff's

(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,

IFP status should, therefore, be revoked. 2007 WL

2009), the Honorable Kiyo A. Matsumoto, United

cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding

the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical

and could not proceed IFP in the absence of a injury.5

demonstration of an imminent threat of serious

physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his

*3 As defendant candidly admits, there is one case in which

wound and its symptoms in detail, and I have

plaintiff's leg infection was found to support a finding of an

no doubt that the wound is serious. However, in

imminent threat of serious physical injury sufficient to come

granting summary judgment dismissing an action

within the exception to Section 1915(g). Nelson v. Scoggy,

last year based on the same allegations, Judge

No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2

Mordue of the Northern District found that there

(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment

was no genuine issue of fact that plaintiff's own

was subsequently granted for defendants in that case, and

conduct was responsible for the ineffectiveness of

the complaint was dismissed. Judge Mordue concluded that

the treatment he was provided:

there was no genuine issue of fact that plaintiff had received

Furthermore, to the extent that Nelson's medical

adequate medical care for his leg wound and that the failure

treatment was delayed, much of the delay

of the leg to heal was the result of plaintiff's own acts of

was due to his own refusal to cooperate with

self-mutilation and interference with the treatment provided.

medical staff and his self-mutilations. Nelson's

Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009

actions to thwart the medical treatment of his

WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4

wound cannot be construed as interference or

indifference by anyone else.... [T]he medical

4 Although the form complaint utilized by plaintiff treatment Nelson received complied with

expressly asks about prior actions involving the constitutional guarantees as it was appropriate,

same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own

action and expressly denied the existence of any actions.

other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.

at 6). Given plaintiff's total failure to respond to the

pending motion and his failure to even deny that

In light of the foregoing, there can be no reasonable dispute

he is actively thwarting treatment of his wound, it

that plaintiff has exceeded the three “strikes” allowed by

would be sheer speculation for me to conclude that

Section 1915(g) and that he cannot, therefore, proceed here

he is in imminent danger of a serious injury as a

without prepaying the filing fee unless he demonstrates

result of defendant's conduct.

an imminent threat of serious physical injury. Plaintiff has

declined to attempt to make this showing in response to

defendant's motion, and the only suggestion in the record IV. Conclusion

of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff

complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being

[a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that

5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be

speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further

in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays

v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion.

White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);

see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)

V. OBJECTIONS

(imminent danger exception to Section 1915(g) requires

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of

“specific fact allegations of ongoing serious physical injury,

the Federal Rules of Civil Procedure, the parties shall have

or of a pattern of misconduct evidencing the likelihood

fourteen (14) days from receipt of this Report to file written

of imminent serious physical injury”). Given the plaintiff's

with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d

Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,

500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–

undersigned, 500 Pearl Street, Room 750, New York, New 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–

York 10007. Any requests for an extension of time for filing 38 (2d Cir.1983).

objections must be directed to Judge Jones. FAILURE TO

OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT

All Citations

IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE

APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 Not Reported in F.Supp.2d, 2010 WL 5185047

2020 WL 5775940 from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).

Only the Westlaw citation is currently available.

United States District Court, N.D. New York. In determining whether an action is frivolous, the court must

consider whether the complaint lacks an arguable basis in

Andrew S. BENNETT and law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Kristina M. McDonald, Plaintiffs, Dismissal of frivolous actions is appropriate to prevent abuses

v. of court process as well as to discourage the waste of judicial

Don BAILEY and Route 11 Motorsports, Defendants. resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505

F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to

5:20-CV-903 (GTS/ATB) show liberality toward pro se litigants, and must use extreme

| caution in ordering sua sponte dismissal of a pro se complaint

Signed 08/17/2020 before the adverse party has been served and has had an

opportunity to respond, the court still has a responsibility

Attorneys and Law Firms to determine that a claim is not frivolous before permitting

a plaintiff to proceed. Fitzgerald v. First East Seventh St.

ANDREW S. BENNETT and KRISTINA M. McDONALD,

Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that

Plaintiffs Pro Se.

a district court may dismiss a frivolous complaint sua sponte

even when plaintiff has paid the filing fee).

ORDER and REPORT-RECOMMENDATION To survive dismissal for failure to state a claim, the complaint

must contain sufficient factual matter, accepted as true, to

ANDREW T. BAXTER, United States Magistrate Judge

state a claim that is “plausible on its face.” Ashcroft v.

*1 The Clerk has sent to the court for review a complaint Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

brought pursuant to 42 U.S.C. § 1983, filed by plaintiffs Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals

Andrew S. Bennett and Kristina M. McDonald. (Dkt. No. of the elements of a cause of action, supported by mere

1). Plaintiffs have also applied to proceed in forma pauperis conclusory statements, do not suffice.” Id. (citing Bell Atl.

(“IFP”).1 (Dkt. No. 2). Corp., 550 U.S. at 555).

1 Both plaintiffs have signed the complaint and II. Complaint

the IFP application and are each representing Plaintiffs allege that on March 17, 2020, they purchased a

themselves. Because this court is recommending car from the defendant Don Bailey and his company Route

dismissal for lack of jurisdiction, the court will not 11 Motorsports. (Complaint (“Compl.”) ¶ 4 at p.2 (Facts)).

require plaintiffs to file separate IFP applications. Plaintiffs claim that defendant Bailey gave them a “90 Day

Warranty” which he is not honoring. (Id.) Two days after

I. IFP Application they purchased the vehicle, the motor began “knocking,” and

Plaintiffs declare in their IFP application that they are unable plaintiffs contacted Don Bailey, who has failed to rectify the

to pay the filing fee. (Dkt. No. 2). After reviewing his situation. (See Compl. generally ¶ 4 at pp.3-6). Plaintiffs seek

application, this court finds that plaintiffs are financially a full refund of the purchase price of the vehicle and damages

eligible for IFP status. for pain and suffering for a total of $10,500. (Compl. ¶¶ 5-6).

However, in addition to determining whether plaintiffs meet

III. Subject Matter Jurisdiction

the financial criteria to proceed IFP, the court must also

consider the sufficiency of the allegations set forth in the A. Legal Standards

complaint in light of 28 U.S.C. § 1915, which provides that *2 Federal courts are courts of limited jurisdiction, have

the court shall dismiss the case at any time if the court only the power that is authorized by Article III of the

determines that the action is (i) frivolous or malicious; (ii) Constitution, and may only preside over cases that fall

fails to state a claim on which relief may be granted; or (iii) within the subject matters delineated by Congress. Bender v.

(citation omitted). The court must determine whether it has Polk County v. Dodson, 454 U.S. 312, 315 (1981)). Private

subject matter jurisdiction, and must dismiss a case at any conduct is simply beyond the reach of section 1983 “ ‘no

stage of the proceedings if it determines that jurisdiction is matter how discriminatory or wrongful” that conduct may

lacking. Cave. v. East Meadow Union Free School Dist., 514 be.” Id. (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526

F.3d 240, 250 (2d Cir. 2008). U.S. 40, 49-50 (1999)). A private party may act under color

of state law if he or she engages in conduct that constitutes

In addition, federal courts have an “independent obligation” willful participation in joint activity with the state. Sybalski

to consider the presence or absence of subject matter v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257

jurisdiction sua sponte. Leopard Marine & Trading, Ltd. v. (2d Cir. 2008) (per curiam). The nexus to the state must be so

Easy Street, Ltd., 896 F.3d 174, 181 (2d Cir. 2018) (quoting In close as to be fairly treated as that of the state itself. Tancredi v.

re Quigley Co., Inc., 676 F.3d 45, 50 (2d Cir. 2012). Subject Metro Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (citations

matter jurisdiction can never be waived or forfeited. ACCD omitted).

Global Agriculture, Inc. v. Perry, No. 12 Civ. 6286, 2013 WL

840706, at *1 (S.D.N.Y. March 1, 2013) (quoting Dumann

Realty, LLC v. Faust, No. 09 Civ. 7651, 2013 WL 30672, at *1

b. Application

(S.D.N.Y. Jan. 3, 2013) (citing Gonzalez v. Thaler, 565 U.S.

134, 141 (2012); Henderson ex rel. Henderson v. Shinseki, The defendants in this action are a private individual and

562 U.S. 434-35 (2011)). what appears to be his car dealership. There is no indication

that either of the defendants acts under color of state law.

Federal question jurisdiction pursuant to 28 U.S.C. § 1331 Therefore there is no jurisdiction under section 1983 for the

provides a basis for jurisdiction when the plaintiff brings plaintiffs’ case. The court realizes that the plaintiffs are pro

a civil action that arises “under the Constitution, laws, or se and will attempt to determine whether there is any other

treaties of the United States.” 28 U.S. C. § 1331. Diversity jurisdictional basis for plaintiffs to bring an action in this court

jurisdiction is present when an action is between citizens of pursuant to federal question or diversity jurisdiction.2

different states, and when the amount in controversy is in

excess of $75,000.00. 28 U.S.C. § 1332(a)(1).

2 A pro se plaintiff's pleadings are interpreted to raise

the strongest arguments that they suggest. Burgos

B. Application v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

1. Section 1983

2. Magnuson-Moss Warranty—Federal Trade

Commission Act (“MMWA”), 15 U.S.C. § 2301

a. Legal Standards

In order to bring a civil rights action under 42 U.S.C. § a. Legal Standards

1983, the plaintiff must establish that a defendant, who acts

*3 The MMWA, is also known as the federal “lemon law.”

under color of state law, has caused the deprivation of a right

Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 222 (2d

protected by the federal constitution or laws. 42 U.S.C. §

Cir. 2017). The MMWA “is a remedial statute designed ‘to

1983. A person acts under color of state law when he or she

improve the adequacy of information available to consumers,

acts in his or her official capacity, “clothed with the authority

prevent deception, and improve competition in the marketing

of state law,” or acts under “pretense” of law by purporting

of consumer products.’ ” Id. (quoting Motor Vehicle Mfrs.

to act with official power. Pleasure Island, Inc. v. City of

Ass'n of U.S., Inc. v. Abrams, 899 F.2d 1315, 1317 (2d

New York, No. 12 Civ. 4699, 2013 WL 2311837, at *5-6

Cir. 1990)) (quoting 15 U.S.C. § 2302(a)). The MMWA

(E.D.N.Y. May 24, 2013) (quoting West v. Atkins, 487 U.S.

allows “a consumer who is damaged by the failure of a

42, 49 (1988)).

supplier, warrantor, or service contractor to comply with ... a

written warranty [or] implied warranty ... [to] bring suit for

The requirement that the defendant acted under “color of

damages and other legal and equitable relief.’ ” Id. (quoting

federal jurisdiction under certain circumstances. Id. MMWA there is no jurisdiction in federal court for this action, given

claims may be brought in federal court only if the amount in the facts of plaintiffs’ case. While federal courts decide state

controversy meets or exceeds $50,000 (exclusive of interests law claims, those claims are generally either supplemental to a

and costs), computed on the basis of all claims in the action. federal claim3 or brought under diversity jurisdiction. There

Id. (citing § 2310(d)(3)(B)). are no viable federal claims in this action. Thus, supplemental

jurisdiction does not apply. Plaintiffs and defendants are

citizens of the same state, and the amount in controversy is

b. Application less than the jurisdictional amount of $75,000.00. Thus, there

is no diversity jurisdiction. Because there is no jurisdiction to

Plaintiffs in this action allege that the value of the car was decide plaintiffs’ claims, I must recommend dismissal.

$7,000.00 and their “pain and suffering” was worth another

$3,500.00 for a total of $10,500.00 in damages. (Compl. 3 28 U.S.C. § 1367(a) provides that

¶¶ 5-6). Thus, even if plaintiffs could make a claim under

in any civil action of which the district courts

the MMWA for the failure of defendants to abide by their

have original jurisdiction, the district courts shall

warranty, and even if they had cited the appropriate statute,

have supplemental jurisdiction over all other

plaintiffs cannot meet the jurisdictional amount for bringing

claims that are so related to claims in the action

an MMWA claim in federal court.

within such original jurisdiction that they form

part of the same case or controversy under

Article III of the United States Constitution.

3. Contract Claims Such supplemental jurisdiction shall include

claims that involve the joinder or intervention of

additional parties.

a. Legal Standards

Contract actions are generally state law claims, “governed by IV. Opportunity to Amend

state law standards and analyzed using the familiar elements

A. Legal Standards

applied in a New York breach of contract action.” Liana

*4 Generally, when the court dismisses a pro se complaint

Carrier Ltd. v. Pure Biofuels Corporation, 672 F. App'x 85,

sua sponte, the court should afford the plaintiff the

92 (2d Cir. 2016). Contractual obligations, are inherently

opportunity to amend at least once, however, leave to re-plead

creatures of state law. Eugene Iovine, Inc. v. City of New York,

may be denied where any amendment would be futile. Hill

No. 98 Civ. 2767, 1999 WL 4899, at *2 (S.D.N.Y. Jan. 5,

v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Ruffolo

1999) (citing Gully v. First National Bank in Meridian, 299

v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).

U.S. 109, 115 (1939)). “[A] complaint alleging a violation of a

Futility is present when the problem with plaintiffs’ causes of

state cause of action, when Congress has determined that there

action is substantive such that better pleading will not cure it.

should be no private, federal cause of action for the violation,

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation

does not state a claim ‘arising under the Constitution, laws,

omitted).

or treaties of the United States.’ ” Id. (quoting Merrell

Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817

(1986)). B. Application

There is no subject matter jurisdiction for plaintiffs to bring

this action in federal court. It does not appear that any

b. Application amendment or additional pleading will cure the defects in

jurisdiction. Because there is no subject matter jurisdiction,

Plaintiffs in this case essentially argue that defendant Bailey the court will recommend dismissing the action without

did not honor his agreement to fix the plaintiffs’ car and now prejudice to plaintiffs bringing their claims in the appropriate

does not return their calls or texts. (Compl. ¶ 4 at pp.5-6). state court. However, such dismissal should be without the

As stated above, plaintiffs do not meet the jurisdictional opportunity to amend since plaintiffs will not be able to cure

minimum for an MMWA claim. To the extent that plaintiffs the deficiency in their complaint with better pleading.

WHEREFORE, based on the findings above, it is Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the

parties have fourteen (14) days within which to file written

ORDERED, that plaintiffs’ application to proceed IFP objections to the foregoing report. Such objections shall be

(Dkt. No. 2) is GRANTED ONLY TO THE EXTENT filed with the Clerk of the Court. FAILURE TO OBJECT

NECESSARY TO FILE THIS ACTION, and it is TO THIS REPORT WITHIN FOURTEEN DAYS WILL

PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

RECOMMENDED, that the plaintiffs’ complaint be 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of

Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28

DISMISSED WITHOUT PREJUDICE FOR LACK OF

U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.

SUBJECT MATTER JURISDICTION, BUT WITHOUT

THE OPPORTUNITY TO AMEND, and it is.

All Citations

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

Report-Recommendation on plaintiffs by regular mail. Not Reported in Fed. Supp., 2020 WL 5775940

2020 WL 5775231 the Report-Recommendation.1 Magistrate Judge Baxter

Only the Westlaw citation is currently available. employed the proper standards, accurately recited the facts,

United States District Court, N.D. New York. and reasonably applied the law to those facts. As a result,

the Report-Recommendation is accepted and adopted in its

Andrew S. BENNETT; and entirety for the reasons set forth therein, and Plaintiffs’

Kristina M. McDonald, Plaintiffs, Complaint is dismissed without prejudice for lack of subject-

v. matter jurisdiction.

Don BAILEY; and Route 11 Motorsports, Defendants.

1 When no objection is made to a report-

5:20-CV-0903 (GTS/ATB)

recommendation, the Court subjects that report-

recommendation to only a clear-error review. Fed.

Signed 09/28/2020

R. Civ. P. 72(b), Advisory Committee Notes: 1983

Attorneys and Law Firms Addition. When performing such a “clear error”

review, “the court need only satisfy itself that there

ANDREW S. BENNETT and KRISTINA M. McDONALD, is no clear error on the face of the record in order to

Plaintiffs, Pro Se, 1137 Roberts Hollow Road, Lowman, New accept the recommendation.” Id.; see also Batista

York 14861. v. Walker, 94-CV-2826, 1995 WL 453299, at *1

(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am

permitted to adopt those sections of [a magistrate

DECISION and ORDER judge's] report to which no specific objection is

made, so long as those sections are not facially

GLENN T. SUDDABY, Chief United States District Judge erroneous.”) (internal quotation marks omitted).

*1 Currently before the Court, in this pro se habeas breach- ACCORDINGLY, it is

of-contract action filed by Andrew S. Bennett and Kristina

M. McDonald (“Plaintiffs”) against Don Bailey and Route 11 ORDERED that Magistrate Judge Baxter's Report-

Motorsports (“Defendants”) pursuant to 42 U.S.C. § 1983, is Recommendation (Dkt. No. 3) is ACCEPTED and

United States Magistrate Judge Andrew T. Baxter's Report- ADOPTED in its entirety; and it is further

Recommendation recommending that Plaintiffs’ Complaint

be dismissed without prejudice for lack of subject-matter ORDERED that Plaintiffs’ Complaint (Dkt. No. 1) is

jurisdiction pursuant to 28 U.S.C. § 1915 and that such DISMISSED without prejudice for lack of subject-matter

dismissal should be without prior leave to amend. (Dkt. jurisdiction.

No. 3.) Plaintiffs have not filed an objection to the Report-

Recommendation, and the time in which to do so has expired.

All Citations

(See generally Docket Sheet.)

Not Reported in Fed. Supp., 2020 WL 5775231

After carefully reviewing the relevant papers herein,

including Magistrate Judge Baxter's thorough Report-

2022 WL 17617752 (B); see Livingston v. Adirondack Beverage Co., 141 F.3d

Only the Westlaw citation is currently available. 434, 437 (2d Cir. 1998). The Court must also dismiss a

United States District Court, N.D. New York. complaint, or portion thereof, when the Court lacks subject

matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the

Kristy DOBBS, Plaintiff, law mandates dismissal on any of these grounds, the Court

v. is obliged to construe pro se pleadings liberally, Harris v.

SEFCU, Defendant. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to

raise the “strongest [claims] that they suggest.” Triestman

1:22-CV-1228 (LEK/TWD) v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.

| 2006) (internal quotations and citations omitted, emphasis in

Signed December 13, 2022 original).

Attorneys and Law Firms A claim is frivolous when it “lacks an arguable basis either

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325

KRISTY DOBBS, Plaintiff, pro se, 315 Sheridan Ave.,

(1989), abrogated on other grounds by Bell Atl. Corp. v.

Albany, NY 12206.

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

ORDER AND REPORT-RECOMMENDATION level of the irrational or the wholly incredible”); Livingston,

141 F.3d at 437 (“[A]n action is ‘frivolous’ when either: (1)

THÉRÈSE WILEY DANCKS, United States Magistrate

the factual contentions are clearly baseless ... or (2) the claim

Judge

is based on an indisputably meritless legal theory.”) (internal

*1 Kristy Dobbs (“Plaintiff”), proceeding pro se, quotations and citation omitted). To survive dismissal for

commenced this action against SEFCU (“Defendant”) on failure to state a claim, a complaint must contain a short

November 18, 2022, and, in lieu of paying the Northern and plain statement of the claim showing that the pleader is

District of New York's filing fee, seeks leave to proceed in entitled to relief. Fed. R. Civ. P. 8(a)(2). This short and plain

forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) 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

I. IFP APPLICATION that allows the court to draw the reasonable inference that the

Plaintiff declares that she is unable to pay the filing fee for defendant is liable for the misconduct alleged.” Ashcroft v.

this action. (See Dkt. No. 2.) The undersigned has reviewed Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim

Plaintiff's IFP application and determines she financially must do more than present “an unadorned, the-defendant-

qualifies to procced IFP. Therefore, Plaintiff's IFP application harmed-me accusation.” Id. It must “give the defendant fair

is granted.1 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)

1 Plaintiff is advised that she will still be required to (2).

pay any costs and fees that she may incur in this

*2 In determining whether a complaint states a claim upon

matter, including, but not limited to, any copying

which relief may be granted, “the court must accept the

fees or witness fees.

material facts alleged in the complaint as true and construe

all reasonable inferences in the plaintiff's favor.” Hernandez

II. SCREENING OF THE COMPLAINT

v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). “[T]he tenet that

A. Legal Standard a court must accept as true all of the allegations contained in

Under Section 1915(e), the Court must dismiss a complaint a complaint is inapplicable to legal conclusions.” Iqbal, 556

filed IFP if it determines that the action “(i) is frivolous or U.S. at 678. “Threadbare recitals of the elements of a cause

malicious; (ii) fails to state a claim on which relief may be of action, supported by mere conclusory statements, do not

suffice.” Id.

Court can discern none. Plaintiffs’ Complaint, at best, alleges

B. Summary of the Complaint possible state law claims for fraud in connection with the

Plaintiff alleges in her Complaint that money was withdrawn transaction. Therefore, the Court finds there is no federal

from her account at Defendant SEFCU. (Dkt. No. 1.) She question jurisdiction.

does not specify when or how much. Id. Plaintiff requests that

the Court orders SEFCU to reimburse her in the amount of To properly allege diversity jurisdiction, Plaintiff must allege

$20,000. Id.2 (1) diversity of citizenship between the parties, and (2) an

amount in controversy that exceeds $75,000. See 28 U.S.C. §

2 Plaintiff has also filed three separate actions in this 1332(a). Here, Plaintiff cannot establish diversity jurisdiction

District against Citizens Bank alleging someone because Plaintiff and Defendant are both citizens of the same

withdrew money from her account. See Dobbs state, New York. Plaintiff provides that she lives in Albany,

v. Citizens Bank et al., 1:10-cv-01487-LEK-RFT, New York and SEFCU is located in Albany, New York.

Dkt. No. 1(2010) (“Dobbs I”); Dobbs v. Citizen Moreover, the amount in controversy is $20,000. Therefore,

Bank, 1:20-cv-00627-GLS-CFH, Dkt. No. 1 (2020) the Court finds there is no diversity jurisdiction.

(“Dobbs II”); Dobbs v. Citizens Bank, 1:22-

cv-01226-TJM-DJS, Dkt. No. 1 (2022) (“Dobbs *3 Accordingly, the undersigned recommends dismissing

III”). Dobbs I and Dobbs II were dismissed for Plaintiff's Complaint without prejudice.3 Hollander v.

failure to state a claim upon which relief could Garrett, 710 F. App'x 35, 36 (2d Cir. 2018) (“[D]ismissal

be granted and lack of federal subject matter for subject matter jurisdiction must be without prejudice.”).

jurisdiction. On December 7, 2022, U.S. Magistrate Generally, when the court dismisses a pro se complaint sua

Judge Daniel J. Stewart conducted an initial review sponte, the court should afford the plaintiff the opportunity

in Dobbs III and recommended dismissal of the to amend at least once; however, leave to replead may be

complaint. denied where any amendment would be futile. Ruffolo v.

Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).

C. The Court's Analysis “[L]ack of subject matter jurisdiction is a substantive defect

Plaintiff provides almost no context to her allegations. that cannot be cured by better pleading.” Moran v. Proskauer

More importantly, Plaintiff fails to demonstrate this Court's Rose LLP, No. 1:17-CV-00423 (MAD/TWD), 2017 WL

jurisdiction as she demonstrates neither federal question 3172999, at *3 (N.D.N.Y. July 26, 2017). In deference to

jurisdiction nor diversity jurisdiction. See Smith ex rel. Bey Plaintiff's pro se status and out of an abundance of caution,

v. Kelly, 12-CV-2319, 2012 WL 1898944, at *2 (E.D.N.Y. the Court recommends granting Plaintiff leave to amend.

May 24, 2012) (court is obligated to analyze whether subject

matter jurisdiction exists as a part of § 1915(e) initial review 3 In light of the foregoing recommendation, Plaintiff

and to dismiss the complaint when subject matter jurisdiction is not prevented from filing a complaint in an

is found lacking). appropriate state court, should she wish to do so.

However, the undersigned makes no finding as to

Although Plaintiff has used a complaint form alleging subject whether Plaintiff can successfully or properly bring

matter jurisdiction pursuant to federal question, Plaintiff the complaint in state court.

has failed to establish federal question jurisdiction as she

The Court advises Plaintiff that should she be permitted to

has not set forth a federal law claim. 28 U.S.C. § 1331

amend her Complaint, any amended pleading she submits

confers onto federal courts subject matter jurisdiction over

must comply with Rules 8 and 10 of the Federal Rules of Civil

all federal questions, or “all civil actions arising under the

Procedure. Any such amended complaint should specifically

Constitution, laws, or treaties of the United States.” Federal

identify the legal theory or theories that form the basis for her

question jurisdiction exists where the complaint “establishes

claim.

either that federal law creates the cause of action or that the

plaintiff's right to relief necessarily depends on a resolution

Plaintiff is cautioned that no portion of her prior Complaint

of a substantial question of federal law.” Franchise Tax

shall be incorporated into her amended complaint by

Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1,

reference. Any amended complaint submitted by Plaintiff

against the Defendant and must demonstrate that a case or GRANTED; and it is further

controversy exists between the Plaintiff and the Defendant

which Plaintiff has a legal right to pursue and over which RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1)

this Court has jurisdiction. If Plaintiff is alleging that the be DISMISSED WITHOUT PREJUDICE AND WITH

named Defendant violated a law, she should specifically refer LEAVE TO AMEND; and it is further

to such law. Lastly, Plaintiff is further cautioned that the

filing of vexatious, harassing, or duplicative lawsuits may *4 ORDERED that the Clerk provide Plaintiff with a copy

result in the imposition of sanctions, including limitations on of this Order and Report-Recommendation, along with copies

of the unpublished decisions cited herein in accordance with

her ability to file without prior permission of the Court. See

Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Ajamian v. Nimeh, 14-CV-0320 (GTS), 2014 WL 6078425, at

*3 (N.D.N.Y. Nov. 13, 2014) (“[A] federal district court may

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

impose reasonable filing restrictions on a pro se litigant in

fourteen days within which to file written objections to

that particular court, pursuant to 28 U.S.C. § 1651(a) and its

inherent authority to control and manage its own docket so as

the foregoing report.4 Such objections shall be filed with

to prevent abuse in its proceedings.”); see also In re Sassower, the Clerk of the Court. FAILURE TO OBJECT TO

20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff THIS REPORT WITHIN FOURTEEN DAYS WILL

has demonstrated a “clear pattern of abusing the litigation PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

process by filing vexatious and frivolous complaints,” a 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health

“leave to file” requirement may be instituted by the court and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §

as an appropriate sanction); Hong Mai Sa v. Doe, 406 F.3d 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).

155, 158 (2d Cir. 2005) (“If a litigant has a history of

filing vexatious, harassing or duplicative lawsuits, courts may 4 If you are proceeding pro se and are served with this

impose sanctions, including restrictions on future access to Order and Report-Recommendation by mail, three

the judicial system.”); see, e.g., Johnson v. Progressive.com, additional days will be added to the fourteen-day

19-cv-11202-CM, 2020 WL 589127, at *1 (S.D.N.Y. Feb. 5, period, meaning that you have seventeen days from

2020) (declining to grant pro se plaintiff leave to amend in the date the Order and Report-Recommendation

light of the plaintiff's “abusive litigation history” and where was mailed to you to serve and file objections. Fed.

amendment would be futile). R. Civ. P. 6(d). If the last day of that prescribed

period falls on a Saturday, Sunday, or legal holiday,

then the deadline is extended until the end of the

III. CONCLUSION

next day that is not a Saturday, Sunday, or legal

For the reasons sated herein, it is hereby

holiday. Fed. R. Civ. 6(a)(1)(C).

ACCORDINGLY, it is hereby

All Citations

Not Reported in Fed. Supp., 2022 WL 17617752

2023 WL 1431633 (quoting N.D.N.Y. Local Rule 72.1(c)). When a party files

Only the Westlaw citation is currently available. “[g]eneral or conclusory objections, or objections which

United States District Court, N.D. New York. merely recite the same arguments [previously] presented to

the magistrate judge,” the district court reviews a magistrate

Kristy DOBBS, Plaintiff, judge's report-recommendations for clear error. O'Diah v.

v. Mawhir, No. 9:08-CV-322 (TJM)(DRH), 2011 WL 933846,

SEFCU, Defendant. at *1 (N.D.N.Y. Mar. 16, 2011) (citations omitted); accord

Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766

1:22-cv-01228 (AMN/TWD) (2d Cir. 2002) (a “statement, devoid of any reference to

| specific findings or recommendations to which [the plaintiff]

Signed February 1, 2023 objected and why, and unsupported by legal authority, was not

sufficient to preserve” a claim).

Attorneys and Law Firms

“[I]n a pro se case, the court must view the submissions by a

KRISTY DOBBS, 315 Sheridan Ave., Albany, NY 12206,

more lenient standard than that accorded to ‘formal pleadings

Plaintiff, Pro Se.

drafted by lawyers.’ ” Govan v. Campbell, 289 F. Supp.

2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner,

404 U.S. 519, 520 (1972)) (additional citations omitted).

MEMORANDUM-DECISION AND ORDER The Second Circuit has held that courts are obligated to

“ ‘make reasonable allowances to protect pro se litigants’

Anne M. Nardacci, United States District Judge:

” from inadvertently forfeiting legal rights merely because

I. INTRODUCTION they lack a legal education. Govan, 289 F. Supp. 2d at 295

*1 On November 18, 2022, Plaintiff pro se Kristy Dobbs (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

commenced this action alleging that money was improperly That said, “even a pro se party's objections to a Report

withdrawn from her account at Defendant SEFCU. See and Recommendation must be specific and clearly aimed at

Dkt. No. 1 at 4. Plaintiff also sought leave to proceed particular findings in the magistrate's proposal ....” Machicote

in forma pauperis (“IFP”). Dkt. No. 2. This matter was v. Ercole, No. 06 Civ. 13320 (DAB)(JCF), 2011 WL 3809920,

referred to United States Magistrate Judge Thérèse Wiley at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord

Dancks, who, on December 13, 2022, issued an Order and Caldwell v. Petros, No. 1:22-cv-567 (BKS/CFH), 2022 WL

Report-Recommendation granting Plaintiff's application to 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate

proceed IFP, and recommending that Plaintiff's complaint be review, “the court may accept, reject or modify, in whole or in

dismissed without prejudice and with leave amend. See Dkt. part, the findings or recommendations made by the magistrate

No. 5 at 6. On December 19, 2022, Plaintiff filed a response [judge].” 28 U.S.C. § 636(b)(1)(C).

to the Report-Recommendation. Dkt. No. 6.

III. DISCUSSION

For the reasons set forth below, the Court adopts the Report-

*2 Plaintiff has not identified any portion of the Report-

Recommendation in its entirety, and orders that the Complaint

Recommendation that Plaintiff asserts to be error. In

is dismissed without prejudice and with leave to amend.

response to the Report-Recommendation, Plaintiff submitted

a document docketed as an objection. Dkt. No. 6. Plaintiff's

II. STANDARD OF REVIEW submission restates the Statement of Claim from the

This court reviews de novo those portions of a magistrate Complaint, compare Dkt. No. 6, with Dkt. No. 1 at 4, and

judge's report-recommendations that have been properly does not reference the Report-Recommendation or identify

preserved with a specific objection. 28 U.S.C. § 636(b)(1) any objection to the analysis in the Report-Recommendation.

(C). “To be ‘specific,’ the objection must, with particularity, Plaintiff has thus failed to preserve an objection, and the

‘identify [1] the portions of the proposed findings, Court reviews the Report-Recommendation for clear error.

recommendations, or report to which it has an objection and See Caldwell, 2022 WL 16918287, at *1; O'Diah, 2011 WL

[2] the basis for the objection.’ ” Petersen v. Astrue, 2 F. 933846, at *1.

standard for review of a pro se complaint under Section error and found none, the Court adopts the Report-

1915(e)(2)(B) of Title 28 of the United States Code and

Recommendation in its entirety.2

Rule 12(h)(3) of the Federal Rules of Civil Procedure. See

Dkt. No. 5 at 2-3 (citing, inter alia, Harris v. Mills, 572 2 The Court reiterates Magistrate Judge Dancks's

F.3d 66, 72 (2d Cir. 2009) and Triestman v. Fed. Bureau of admonition to Plaintiff that any amended complaint

Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)). Magistrate or submission to this Court must comply with

Judge Dancks determined that Plaintiff failed to establish Rules 8 and 10 of the Federal Rules of Civil

federal question jurisdiction because, even when liberally Procedure, including by specifically identifying

construed, “Plaintiff identifies no statute under which her the facts and legal theory or theories that form

Complaint is brought and the Court can discern none.” the basis of any claim. Additionally, Magistrate

Id. at 4; see Dkt. No. 1 at 3. Furthermore, Magistrate Judge Dancks appropriately cautioned Plaintiff that

Judge Dancks determined that “Plaintiff cannot establish filing vexatious, harassing, or duplicative lawsuits

diversity jurisdiction because Plaintiff and Defendant are may result in the imposition of sanctions, which

both citizens of” New York State, and “the amount in may include limitations on Plaintiff's ability to

controversy is $20,000.” Dkt. No. 5 at 4; see Dkt. No. 1 at 3-4. file submissions in federal court without prior

Accordingly, Magistrate Judge Dancks correctly concluded permission of the Court. See Dkt. No. 5 at 5-6.

that “Plaintiff fails to demonstrate this Court's jurisdiction

as she demonstrates neither federal question jurisdiction nor IV. CONCLUSION

diversity jurisdiction.” Dkt. No. 5 at 3-4 (citing Smith ex rel. *3 Accordingly, the Court hereby

Bey v. Kelly, 12-CV-2319 (JS)(AKT), 2012 WL 1898944, at

*2 (E.D.N.Y. May 24, 2012)). ORDERS that the Report-Recommendation, Dkt. No. 5, is

ADOPTED in its entirety; and the Court further

Finally, considering Plaintiff's pro se status, Magistrate Judge

Dancks recommended dismissal of the Complaint without ORDERS that the Complaint, Dkt. No. 1, is DISMISSED

prejudice and with leave to amend.1 The Court agrees without prejudice and with leave to amend; and the Court

that Plaintiff should be granted an opportunity to amend further

the complaint in light of her pro se status. See Nielsen v.

Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“Generally, leave ORDERS that Plaintiff shall file an amended complaint

to amend should be freely given, and a pro se litigant in within THIRTY (30) DAYS of the filing date of this Order;

particular should be afforded every reasonable opportunity to and the Court further

demonstrate that he has a valid claim.”) (citation omitted);

Bruce v. Tompkins Cty. Dep't of Soc. Servs. ex rel. Kephart, ORDERS that, if Plaintiff fails to file an amended complaint

No. 5:14-CV-0941 (GTS/DEP), 2015 WL 151029, at *4 within thirty (30) days of this Order, the Clerk of the Court

(N.D.N.Y. Jan. 7, 2015) (“a court should not dismiss a shall enter judgment in Defendant's favor and close this case

complaint filed by a pro se litigant without granting leave to without further order of this Court; and the Court further

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 serve a copy of this Order on Plaintiff

(quoting Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. in accordance with the Local Rules.

1991)).

IT IS SO ORDERED.

1 Magistrate Judge Dancks noted that “Plaintiff is not

prevented from filing a complaint in an appropriate

All Citations

state court, should she wish to do so,” although she

made no determination as to whether Plaintiff could Slip Copy, 2023 WL 1431633

successfully or properly bring such a claim. Dkt.

No. 5 at 5-6 & n.3.

2016 WL 7077082 determines that ... the action or appeal (i) is frivolous or

Only the Westlaw citation is currently available. malicious; (ii) fails to state a claim on which relief may be

United States District Court, N.D. New York. granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

Jamal RASHID, Plaintiff, Thus, it is a court’s responsibility to determine that a plaintiff

v. may properly maintain his complaint before permitting him

Dr. SUFYAN, Defendant. to proceed further with his action.

Civ. No. 1:16-CV-1094(FJS/DJS) In reviewing a pro se complaint, this Court has a duty to

| show liberality toward pro se litigants, see Nance v. Kelly,

Signed 11/04/2016 912 F.2d 605, 606 (2d Cir. 1990), and should exercise

“extreme caution ... in ordering sua sponte dismissal of a

Attorneys and Law Firms pro se complaint before the adverse party has been served

and both parties (but particularly the plaintiff) have had an

JAMAL RASHID, 15-A-4424, Great Meadow Correctional

opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,

Facility, Box 51, Comstock, New York 12821, Plaintiff, Pro

41 (2d Cir. 1983) (emphasis in original) (citations omitted).

Se.

Therefore, a court should not dismiss a complaint if the

plaintiff has stated “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly,

REPORT-RECOMMENDATION and ORDER 550 U.S. 544, 570 (2007). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the

DANIEL J. STEWART, United States Magistrate Judge

court to draw the reasonable inference that the defendant

*1 The Clerk has sent for review a civil Complaint filed by is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

pro se Plaintiff Jamal Rashid, who is presently incarcerated U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

in Great Meadow Correctional Facility. Dkt. No. 1, Compl. U.S. at 556). Although the court should construe the factual

Plaintiff has not paid the filing fee, but instead submitted a allegations in the light most favorable to the plaintiff, “the

Motion to Proceed In Forma Pauperis (“IFP”).1 Dkt. No. 5, tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.”

IFP App. By separate Order, dated November 4, 2016, this

Id. “Threadbare recitals of the elements of a cause of action,

Court granted Plaintiff’s Application to Proceed IFP. Now,

supported by mere conclusory statements, do not suffice.”

in accordance with 28 U.S.C. § 1915(e), the Court will sua

Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555).

sponte review the sufficiency of the Complaint.

“[W]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the

1 This case was initially brought in September 2016, complaint has alleged—but it has not ‘show[n]’–‘that the

but was administratively closed due to the fact pleader is entitled to relief.’ ” Id. at 679 (quoting FED. R. CIV.

that Plaintiff’s IFP Application was incomplete. P. 8(a)(2)). A pleading that only “tenders naked assertions

Dkt. Nos. 2 & 4. Upon the filing of a complete devoid of further factual enhancement” will not suffice. Id.

IFP Application, this matter was reopened and at 678 & 679 (further citing Bell Atl. Corp. v. Twombly,

forwarded to the undersigned for review. Dkt. Nos. 550 U.S. at 555, for the proposition that Federal Rule of

5 & 6. Civil Procedure 8 “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation”). Allegations

that “are so vague as to fail to give the defendants adequate

I. DISCUSSION

notice of the claims against them” are subject to dismissal.

Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).

A. Pleading Requirements

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

that, when a plaintiff seeks to proceed in forma pauperis, B. Allegations Contained in Plaintiff’s Complaint

November 2013, after being choked from behind and losing is obligated to notice on its own motion the basis for its own

consciousness, Plaintiff awoke and walked to a hospital for jurisdiction. City of Kenosha, Wisconsin v. Bruno, 412 U.S.

help. Compl. at pp. 4-5.2 The hospital referred Plaintiff to 507, 512 (1973); see also Alliance of Am. Ins. v. Cuomo,

Defendant Dr. Sufyan for a “shattered orbital floor in his 854 F.2d 591, 605 (2d Cir. 1988) (challenge to subject matter

right eye, a broken jaw, and bone fragments in his sinus jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3)

box.” Id. Dr. Sufyan performed plastic surgery, consisting of (court may raise basis of its jurisdiction sua sponte). When

placing metal in Plaintiff’s face in three places—eyes, nose, subject matter jurisdiction is lacking, dismissal is mandatory.

and jaw. Id. at p. 4. According to Plaintiff, complications arose United States v. Griffin, 303 U.S. 226, 229 (1938); FED. R.

wherein his eye bled for a month, screws were falling out, CIV. P. 12(h)(3) (“If the court determines at any time that it

he experienced headaches, and had trouble eating. Id. at pp. lacks subject-matter jurisdiction, the court must dismiss the

4-5. When Plaintiff complained to Dr. Sufyan about a screw action.”). In light of his pro se status, and because of the

that came loose, Dr. Sufyan replied that he should not worry lack of clarity regarding the basis for the Court’s jurisdiction,

because the brace would come out shortly. Id. at p. 5. Medical the Court will sua sponte assess whether subject matter

professionals have advised Plaintiff that the plates were not jurisdiction is present here under both federal question and

placed correctly and that the hardware failed.3 Id. diversity jurisdiction.

With regard to the Court’s federal question jurisdiction, the

2 Citations to the Plaintiff’s Complaint are to Court has “original jurisdiction of all civil actions arising

the page numbers automatically assigned by the under the Constitution, laws, or treaties of the United States.”

Court’s Case Management Electronic Case Files 28 U.S.C. § 1331. Thus I start my analysis with the federal

(“CM/ECF”) System. statute by which Plaintiff has invoked in order to remedy

3 Plaintiff mentions that he had retained an attorney violations of his constitutional rights.

to represent him in a malpractice action against

First, after reviewing the facts of this case, the Court is unsure

Dr. Sufyan, but the attorney apparently stopped

as to the precise Constitutional right Plaintiff asserts has been

representing him at some point. It is not clear

violated. But even more problematic for Plaintiff is the fact

whether a malpractice action has been brought by

that the a party may not be held liable under § 1983 unless

Plaintiff and, if so, what the status of such action is

it can be established that he has acted under the color of

at the present time.

State law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d

The Court notes that in bringing this action, Plaintiff utilized Cir. 1994) (noting state action requirement under § 1983);

a pro forma complaint typically used by inmates who are Wise v. Battistoni, 1992 WL 280914, at *1 (S.D.N.Y. Dec.

seeking to vindicate violations of their constitutional rights 10, 1992) (same) (citations omitted). Thus, State action is an

pursuant to 42 U.S.C. § 1983. That statute “establishes a essential element of any § 1983 claim. See Gentile v. Republic

cause of action for ‘the deprivation of any rights, privileges, Tobacco Co., 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995)

or immunities secured by the Constitution and laws’ of the (citing Velaire v. City of Schenectady, 862 F. Supp. 774, 776

United States.” German v. Fed. Home Loan Mortg. Corp., (N.D.N.Y. 1994) (citation omitted)).

885 F. Supp. 537, 573 (S.D.N.Y. 1995) (quoting Wilder v.

Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) & 42 U.S.C. *3 From all reasonable interpretations of the facts contained

§ 1983); see also Myers v. Wollowitz, 1995 WL 236245, at in the Complaint, it appears that Defendant Dr. Sufyan is

*2 (N.D.N.Y. Apr. 10, 1995) (stating that “§ 1983 is the a private surgeon who is employed at the Williams Center

vehicle by which individuals may seek redress for alleged Plastic Surgery Specialists, which Plaintiff states is located in

violations of their constitutional rights”). Yet, in the civil Latham, New York. According to the Complaint, it appears

cover sheet accompanying his Complaint, Plaintiff indicates that Dr. Sufyan provided medical care to Plaintiff prior to the

that this action is one of personal injury—medical malpractice Plaintiff’s incarceration.4 No where in the Complaint does

—and he states that he is bringing this action for “inadequate Plaintiff allege that Dr. Sufyan provided medical care for him

treatment, negligence (medical miscondut), [and] violation of on behalf of the State, at the request of the State, or that Dr.

constitutional right—4th.” Dkt. No. 1-1, Civil Cover Sheet. Sufyan has any connection to the State such that his actions

could be categorized as acting under color of State law.

State law, Plaintiff fails to state a cognizable cause of action (3) citizens of different States and in which citizens or

against Defendant Sufyan pursuant to 42 U.S.C. § 1983. Thus, subjects of a foreign state are additional parties; and

the Court recommends that this claim be dismissed from this

(4) a foreign state, defined in section 1603(a) of this title,

action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

as plaintiff and citizens of a State or of different States.

4 Indeed, despite Plaintiff’s current incarcerated 28 U.S.C. § 1332(a).

status, there is no indication that Plaintiff’s

interaction with Dr. Sufyan occurred while Plaintiff For diversity jurisdiction purposes, an individual’s citizenship

was in custody. According to the Complaint, is the individual’s domicile, which is determined on the basis

Plaintiff began his relationship with Defendant in of two elements: “(1) physical presence in a state and (2) the

October/November of 2013 when, after visiting a intent to make the state a home.” See Zimak Co. v. Kaplan,

hospital, Plaintiff was referred to him for treatment. 1999 WL 38256, at *2 (S.D.N.Y. Jan. 28, 1999) (quoting

Compl. at p. 4. Although unclear, it seems that 15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL

Plaintiff’s criminal charge may relate to the reason PRACTICE ¶ 102.34[2] (3d ed. 1998)).

he sought medical care. Id. at p. 5 (noting his

belief that his retained civil attorney refused to In the “Parties” section of the Complaint, Plaintiff provides a

continue the case due to his criminal case, which Comstock, New York, address for himself.5 For Defendant

“started after someone choked [Plaintiff] from Dr. Sufyan, Plaintiff lists a Latham, New York address,

behind until [he] was unconcious” after which he which, upon information and belief, is his place of

went to the hospital). Plaintiff began experiencing employment. Plaintiff’s claim sounds in medical malpractice

negative side effects from his surgery from some and negligence and he seeks compensation for his pain and

unspecified date, possibly in 2014, through the suffering in the amount of $2,100,000. While on its face the

date the Complaint was signed. Id. at pp. 4-5 & amount in controversy well exceeds the $75,000 as required

7. According to the Department of Corrections by the statute, because both parties apparently reside in the

and Community Supervision (“DOCCS”), his same State, namely, New York State, and thus diversity

current incarceration began in November 2015. jurisdiction is lacking. Accordingly, the Court recommends

See DOCCS Inmate Information Data, available at dismissing Plaintiff’s State claims, to the extent he has

http://nysdoccslookup.doccs.ny.gov (information asserted any, due to a lack of subject matter jurisdiction.6

obtained for DIN 15-A-4424). While it is not clear

w thh e e pth ee nr d eP nla ci yn t oif ff ts he er v ce rid m a in ny al t pim roe c ein e dp ir ni gso , n a nd du r ii tn ig s 5 As previously noted, Rashid is currently

not clear when his he stopped getting treatment incarcerated at the Great Meadow Correctional

from Dr. Sufyan, the facts set forth in the Complaint Facility. Compl. at p. 1.

suggest that during the relevant time in question, 6 This is not a ruling nor finding on the merits of

he was not in prison and was able to travel to

any State claim Plaintiff seeks to pursue against

his various medical appointments by “medicab”.

Defendant.

Compl. at p. 5.

Because the Plaintiff has not set forth a cognizable claim

pursuant to this Court’s federal question jurisdiction, the I II. CONCLUSION

will consider whether the Court has subject matter jurisdiction

*4 In light of the above discussion, the undersigned has

under 28 U.S.C. § 1332, the statute conferring diversity

determined that this Court lacks the subject matter jurisdiction

jurisdiction. For diversity jurisdiction to exist, the matter in

necessary to maintain this action. WHEREFORE, it is

controversy must exceed $75,000 and must be between

hereby

(1) citizens of different States;

RECOMMENDED, that this entire action be sua sponte

(2) citizens of a State and citizens or subjects of a foreign dismissed due to lack of subject matter jurisdiction; and it is

state;

ORDERED, that the Clerk of the Court serve a copy of this APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89

Report-Recommendation and Order upon the parties to this (2d Cir. 1993) (citing Small v. Sec'y of Health and Human

action. Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §

636(b)(1); FED. R. CIV. P. 72 & 6(a).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen

(14) days within which to file written objections to the

All Citations

foregoing report. Such objections shall be filed with the Clerk

of the Court. FAILURE TO OBJECT TO THIS REPORT Not Reported in Fed. Supp., 2016 WL 7077082

2016 WL 7053412 Whether Plaintiff is attempting to assert his claim against

Only the Westlaw citation is currently available. Defendant Dr. Sufyan under the Fourth Amendment or the

United States District Court, N.D. New York. Eighth Amendment does not change the fact that Plaintiff's

complaint does not contain any allegations from which the

Jamal RASHID, Plaintiff, Court can draw the reasonable inference that, at the time

v. Defendant Dr. Sufyan treated Plaintiff, he did so “on behalf of

Dr. SUFYAN, Plastic Surgeon, Williams the State, at the request of the State, or ... ha[d] any connection

Center Plastic Surgeons Specialists, Defendant. to the State such that his actions could be categorized as acting

under color of State law.” See Dkt. No. 8 at 6. Thus, the

1:16-CV-1094 (FJS/DJS) Court agrees with Magistrate Judge Stewart that Plaintiff has

| failed to state a cause of action against Defendant Dr. Sufyan

Signed 12/05/2016 pursuant to 42 U.S.C. § 1983; and, therefore, the Court lacks

federal question jurisdiction over this matter.

Attorneys and Law Firms

Likewise, there is nothing in Plaintiff's complaint or in his

JAMAL RASHID, 15-A-4424, Great Meadow Correctional

objections to Magistrate Judge Stewart's recommendation

Facility, Box 51, Comstock, New York 12821, Plaintiff pro se.

that indicates that Plaintiff and Defendant are citizens of

different states for purposes of diversity jurisdiction. In fact,

as Magistrate Judge Stewart pointed out, it appears that both

ORDER parties appear to be residents of the State of New York. See

Dkt. No. 8 at 7. The Court agrees with this assessment and,

SCULLIN, Senior Judge

therefore, concludes that it lacks diversity jurisdiction over

*1 In a Report-Recommendation and Order dated November this matter.

4, 2016, Magistrate Judge Stewart, after conducting a

review of the sufficiency of Plaintiff's complaint pursuant Accordingly, for the above-stated reasons, the Court hereby

to 28 U.S.C. § 1915(e), concluded that the Court did

not have subject matter jurisdiction over this matter either ORDERS that Magistrate Judge Stewart's November 4, 2016

under federal question jurisdiction or diversity jurisdiction. Report-Recommendation and Order is ACCEPTED in its

Therefore, he recommended that the Court dismiss this action. entirety for the reasons stated therein; and the Court further

See Dkt. No. 8 at 7.

ORDERS that Plaintiff's complaint is DISMISSED for lack

On November 28, 2016, the Court received for filing a of subject matter jurisdiction; and the Court further

document, which the Court has construed as Plaintiff's

objections to Magistrate Judge Stewart's recommendation. ORDERS that the Clerk of the Court shall serve a copy of

See Dkt. No. 9. In that document, Plaintiff does not address this Order on Plaintiff in accordance with the Local Rules.

the jurisdictional issue but, rather, discusses his medical

problems and acknowledges that he was not incarcerated

IT IS SO ORDERED.

when Defendant Dr. Sufyan violated his right, under the

Eighth Amendment, to have adequate medical care. See id. All Citations

at 1.

Not Reported in Fed. Supp., 2016 WL 7053412

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.