Melville v. Jiha

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

KEITH MELVILLE,

Plaintiff,

-against-

19-CV-11903 (CM)

COMMISSIONER JACQUES JIHA; STREET

ORDER OF DISMISSAL

CLEANING DIVISION; RED LIGHT CAMERA

DIVISION; TRAFFIC ENFORCEMENT FROM

TOW TRUCK; BOOTHING DIVISION,

Defendants.

COLLEEN McMAHON, Chief United States District Judge:

Plaintiff, a New Jersey resident, appearing pro se, brings this action under the Court’s

diversity jurisdiction. By order dated January 6, 2020, the Court granted Plaintiff’s request to

proceed without prepayment of fees, that is, in forma pauperis. The Court dismisses the

complaint for the reasons set forth below.

STANDARD OF REVIEW

The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant

who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon,

480 F.3d 636, 639 (2d Cir. 2007). 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 quotation marks 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, 324-25 (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, 32-33 (1992)

(holding that “finding of factual frivolousness is appropriate when the facts alleged rise to the

level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141

F.3d 434, 437 (2d Cir. 1998) (“[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 quotation marks and citation omitted).

BACKGROUND

In this complaint, filed against the Commissioner of the New York City Department of

Finance, the “Street Cleaning Division,” the “Red Light Camera Division,” the “Traffic

Enforcement from Tow Truck,” and the “Boothing [sic] Division.” Plaintiff asserts as follows:

Red lights, street cleaning tickets loading zone tickets should be classified as

munimeter ticket the judgment is being upheld. Ticket issued snow day as

broadcast by 10:10 suspended. Red light ticket on Junction Blvd & Northern

Blvd. given on 135 St. Madison Avenue Man. N.Y. on Far Rockaway. No record

of mail sent to address on [illegible]. Eventually I was boothed [sic] on

Williamsbridge Rd. at 2 a.m. Pelham Pkw. North Bronx [illegible] 3rd Ave putting

me on payment plan of 1,300 with a downpayment of. I had court date at 161 St.

for 511 I waited until the sweeping truck came by without the sanitation car went

I came back there was a ticket on my car.

(ECF No. 2 at ¶ III.)

Plaintiff seeks “relief for impounding and towing” in the amount of $30,000.

DISCUSSION

The subject matter jurisdiction of the federal district courts is limited and is set forth

generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available

only when a “federal question” is presented or when plaintiff and defendant are citizens of

different states and the amount in controversy exceeds the sum or value of $75,000. “‘[I]t is

common ground that in our federal system of limited jurisdiction any party or the court sua

sponte, at any stage of the proceedings, may raise the question of whether the court has subject

matter jurisdiction.’” United Food & Commercial Workers Union, Local 919, AFL-CIO v.

CenterMark Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (quoting Manway

Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)); 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.”); Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own

initiative . . . .”).

To invoke federal question jurisdiction, a plaintiff’s claims must arise “under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under

federal law if the complaint “establishes either that federal law creates the cause of action or that

the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal

law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting

Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Mere invocation of

federal jurisdiction, without any facts demonstrating a federal law claim, does not create federal

subject matter jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182,

1188-89 (2d Cir. 1996). The facts alleged do not give rise to any claims arising under federal

law.

Plaintiff also does not allege facts demonstrating that the Court has diversity jurisdiction

over this action. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that

the plaintiff and the defendant are citizens of different states. Wis. Dep’t of Corr. v. Schacht, 524

U.S. 381, 388 (1998). In addition, the plaintiff must allege to a “reasonable probability” that the

claim is in excess of the sum or value of $75,000.00, the statutory jurisdictional amount. See 28

U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006)

(citation and internal quotation marks omitted).

Because Plaintiff does not allege that his claim satisfies the jurisdictional amount, this

Court lacks diversity jurisdiction over his claims.

District courts generally grant a pro se plaintiff an opportunity to amend a complaint to

cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,

657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Because the defects in Plaintiff’s complaint cannot be cured with an amendment, the Court

declines to grant Plaintiff leave to amend.

LITIGATION HISTORY AND WARNING

Plaintiff filed four cases in this Court against the former New York State Commissioner

of Motor Vehicles that were dismissed as frivolous and for failure to state a claim. See Melville v.

Fiala, ECF 1:18-CV-5174, 4 (S.D.N.Y. July 11, 2018) (listing cases). Plaintiff has been warned

that he could face a filing injunction if he persisted in pursuing frivolous litigation in this Court,

and on December 23, 2019, the Court ordered Plaintiff to show cause why he should not be

barred, under 28 U.S.C. § 1651, from filing new actions IFP without prior permission. See

Melville v. Fiala, ECF 1:19-CV-10919, 6 (S.D.N.Y. Dec. 23, 2019). Plaintiff filed this complaint

on December 26, 2019.

CONCLUSION

The Clerk of Court is directed to mail a copy of this order to Plaintiff, and note service on

the docket.

Plaintiff’s complaint is dismissed for lack of subject matter jurisdiction. See Fed. R. Civ.

P. 12(h)(3).

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status 1s denied for the purpose of an

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: January 17, 2020 ,

New York, New York hie. I Wik

Chief United States District Judge