# Williams v. Pelosi > District Court, N.D. New York · June 11, 2024 URL: https://www.frixlaw.com/law-library/cases/10327855 ## Case - **Court:** District Court, N.D. New York - **Decided:** June 11, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10327855 ## Opinion text UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _______________________________________________ CHARLES WILLIAMS, JR., Plaintiff, v. 5:24-cv-0620 (FJS/TWD) ZACHARY PELOSI, et al., Defendants. _______________________________________________ APPEARANCES: OF COUNSEL: CHARLES WILLIAMS, JR. Plaintiff, pro se 4092 Cayuga County Jail 7445 County House Road Auburn, NY 13021 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 Charles Williams, Jr. (“Plaintiff”) asserting claims pursuant to 42 U.S.C. § 1983. Dkt. No. 1. Plaintiff, who is currently confined at the Cayuga County Jail, has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). Dkt. Nos. 2, 3. 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. 2. 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. 3, he is granted permission to proceed IFP.1 III. BACKGROUND On or about May 19, 2021, Plaintiff alleges he entered a store with four others. Dkt. No. 1 at 4.2 Upon entering the establishment, The defendant Zachary Pelosi ambushed and attacked everyone who entered said establishment without warning or provocation. The defendant maced every occupant above. The defendant than stabbed the plaintiff into his chest. Defenseless plaintiff exited the store blinded nearly, held the door closed after getting everyone out. The defendant used a baton striking plaintiff through the glass door. In imminent danger & fear of his life plaintiff fought for his life to fend off his attackers. Plaintiff endured several injuries, punctures, lacerations & bruises. 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. Id. The complaint contains claims for “pain and suffering” and “mental anguish” pursuant to 42 U.S.C. § 1983. Id. at 5, 1. Plaintiff identified Zachary Pelosi, entrepreneur and business owner of All American Mart in Auburn, and John Doe a.k.a. “Twist,” the store owner’s helper, as defendants. Id. at 2-3. He seeks $300,000 in relief. Id. at 5. 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. “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). 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.”). V. 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 complaint and checked “42 U.S.C. § 1983” as the legal basis for his claims. See Dkt. No. 1 at 1. Additionally, on the civil cover sheet, he listed “8th Amendment violation occurred from store owners attack” as the cause of action. See Dkt. No. 1-1 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 Zachary Pelosi or John Doe 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 . . . 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 the requested $300,000 in damages is greater than the statutory amount in controversy requirement, see Dkt. No. 1 at 5; 28 U.S.C. § 1332(a), the 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. VI. CONCLUSION WHEREFORE, it is hereby ORDERED that Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 2) 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: June 11, 2024 Syracuse, New York / Thérése 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 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 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 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 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- End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 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 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 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 Not Reported in Fed. Supp., 2023 WL 1431633 successfully or properly bring such a claim. Dkt. No. 5 at 5-6 & n.3. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 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 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 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 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10327855. Public record. Not legal advice.