Gamarra v. Supervisor Paul

UNITED STATES DISTRICT COURT 1:11 pm, Oct  17, 2024

EASTERN DISTRICT OF NEW YORK

U.S. DISTRICT COURT

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EASTERN DISTRICT OF NEW YORK

JEAN PAUL GAMARRA,

LONG ISLAND OFFICE

Plaintiff,

MEMORANDUM AND ORDER

-against- 24-CV-6167(GRB)(ST)

SUPERVISOR PAUL,

Defendant.

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GARY R. BROWN, United States District Judge:

Before the Court is the Amended Complaint timely filed by pro se plaintiff Jean Paul

Gamarra (“Gamarra” or “Plaintiff”) following the Court’s Memorandum and Order (“M&O”)

dated September 16, 2024, that granted Plaintiff’s application to proceed in forma pauperis

(“IFP”) and dismissed his Complaint with leave to file an amended complaint in accordance with

the guidance set forth in the M&O. (See Am. Compl., Docket Entry (“DE”) 8; M&O, DE 5.)

Upon review of the Amended Complaint, for the reasons that follow, the Court finds that

Plaintiff has not properly invoked this Court’s subject matter jurisdiction. Accordingly, the

Amended Complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure

12(h)(3).

BACKGROUND

I. Procedural History

The procedural history surrounding Plaintiff’s prior criminal case, 21-CR-00556,

was set forth in detail in the M&O and is incorporated here by reference. See M&O, DE

5 at 1-2. As is relevant here, Plaintiff had filed a three-page handwritten document

entitled “Laymenterm Complaint” with an additional four pages of exhibits. Having

granted Plaintiff’s application to proceed IFP, the Court considered the sufficiency of the

Complaint. Though difficult to comprehend, it appeared that Plaintiff sought to pursue a

civil rights claim pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971) against the sole defendant, “Supervisor Paul”. (Compl.,

DE 1 at 1.)1 A Bivens claim requires that the plaintiff show the defendant’s personal

involvement in the alleged constitutional violation. See Iqbal, 556 U.S. at 676 (“Because

vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that

each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.”); Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (“[I]n

Bivens actions, a plaintiff must allege that the individual defendant was personally

involved in the constitutional violation.”). Further, the Supreme Court has expressly held

that “a Bivens cause of action may not lie where, as here, national security is at issue.”

Egbert v. Boule, 596 U.S. 482, 494 (2022).

The Court determined that “Plaintiff has not alleged a plausible Bivens claim.

Indeed, although Plaintiff names “Supervisor Paul” as the sole defendant, he is not at all

mentioned in the body of the complaint nor are there any allegations of conduct or

inaction attributable to him. (See Compl., DE 1 in toto.)” (M&O, DE 5 at 5.) Further,

the Court explained that Plaintiff did not adequately allege the deprivation of some

constitutional right. (Id. at 6.) Indeed, “[a]lthough Plaintiff include[d] “8th Amendment”

in his complaint, his scant allegations make it impossible for the Court to analyze any

such claim. As the Supreme Court made clear, “[a] pleading that offers ‘labels and

1 Plaintiff wrote “Biven tort 362 § 540” which the Court understands to reference the Nature of Suit Codes on the JS

44 Civil Cover Sheet. Indeed, Plaintiff has included that form as an exhibit to his Complaint and has checked the

boxes for “362 Personal Injury-Medical Malpractice” and “540 Mandamus & Other”. (See DE 1 at 6.)

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conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).” (Id.) Further, the Court

found that “Plaintiff’s reference to 18 U.S.C. § 1518, which proscribes acts to obstruct

the communication of certain information to criminal investigators of health care

offenses, does not provide a basis to impose liability against the defendant. This criminal

statute does not provide a private right of action.” (Id. at 6-7) (citing Garay v. United

States Bancorp, 303 F. Supp.2d 299, 303 (E.D.N.Y. 2004) (obstruction of justice is a

criminal matter for which there is no private cause of action) (citations omitted); Leeke v.

Timmerman, 454 U.S. 83, 85 (1981) (a private citizen lacks a judicially cognizable

interest in the prosecution or non-prosecution of another); Robinson v. Overseas Military

Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (criminal statutes do not provide private

causes of action)).

In dismissing the Complaint, in an abundance of caution, the Court granted leave

for Plaintiff to file an amended complaint within thirty (30) days from the date of the

M&O. (Id. at 9-10.) The M&O made clear that any amended complaint “shall include

any and all claims against any defendant from whom Plaintiff seeks relief. Because an

amended complaint completely replaces the original complaint, Plaintiff shall include the

nature of the claims, facts in support thereof, and a demand for relief. To be clear,

Plaintiff shall include conduct or inaction attributable to any individual so named as a

defendant. Plaintiff would be well-advised to comply with the numbered paragraphs

requirement embodied in Federal Rule of Civil Procedure 10(b) in any amended

complaint.” (Id. at 10.)

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II. The Amended Complaint

On September 30, 2024, Plaintiff filed a fourteen-page, handwritten Amended Complaint

without numbered paragraphs and an additional five pages of exhibits attached. (Am. Compl.,

DE 8.) Like the original Complaint, Plaintiff again names Supervisor Paul as the sole Defendant.

The Amended Complaint is difficult to parse. For example, the Amended Complaint2 begins:

Compliant Amended

Magestrate Arrbitration Settlement

Your Honor Plaintiff consent to a Speedy Trial Act Arbitration Based on the New

Found Discovery. Ineffective Assistance of Council Failed to Find admissible

Evidence proving the Plaintiff was Never Paranoid, were in fact the Plaintiff was

being illeagally undertaken to look paranoid while the Plaintiff was being

“Robbed” (persay) of all his Intellectual Property, All His business venture, All

His Internet Freedom of Communication is being “ForFeiture”, frauding Imposed

Malpractice of Fed. Crim. P. 32.2(a) [to Also Include Forfeiture of Plaintiff Power

of Attorney] [Evidence 1 Unretained]; to stay poor, to Human Traffick In forma

Pauperis. Your Honor, Plaintiff is requesting to Relieve as a Defendant

Supervisor Paul based on Evidence [2] the Plaintiff was prosecuted at a Federal

Level, Impersonating Government 115, Prosecuted From a DC Municipality

called Superior Court Impersonating President Trump Government 115,

Government 116. Defendant Lack of Criminal Investigation Obstructed [Title 18

§1510] the Entitle Jurisdiction to be Accountable, to investigating Comitting a 3rd

Degree crime Supra NY violating Title 18 § 2382 Treason. The Appellate

Attorney Counter Litigation is Criminal Mechanical impersonation of Federal

Law Authority is obstructed from Defendant being able to Enforce the Law up to

the Court, to give the Court Detective law Authority Jurisdiction, as well

Procurement of Giving Honorable Private Chamber Judicial Attorney

Commission Hindsight Jurisdiction, being the US Marshall Entitled

Responsibility. Defendant Counter Litigation is He Had No Criminal intent, with

a Lack of Knowledge of How Crime’s pursuant to Penal Code Reprisal violating

Your Honor Private Chamber Jurisdiction Hindsight title 18 § 2382 Treason.

Defendant Counter Litigation is without intent. Plaintiff Cross Litigate to Relieve

Defendant from being a Defendant to Return to his Entitled obligation with a 6th

Amendment Arrbitration Settlement Speedy trial Act treatetise Resolution. The

case Annotated close is the Probative value of the New Found Discovery Has

2 Excerpts from the Amended Complaint have been reproduced here exactly as they appear in the

original. Errors in spelling, punctuation, and grammar have not been corrected or noted.

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Enough Just Cause out weighing the Entitled Responsibility of the Defendant,

because the New Found Discovery prove’s their was Enough criminal obstruction

to Human traffick Impersonating Government 115, that Defendant Had No ability

to Counter the Obstruction that outweighed committing Treason. If FDC was

unable to preform the Entitled Jurisdiction in the Intrest of Justice, How was the

Defendant Able to Preform His Entitle Responsibility. Defendant is Excluded.

Arrbitratyion Settlement is Defendant Relieved from being a Defendant Classified

Excluded. Weinstein’s Federal Evidence Opinion on an Ultimate Issue §

704.03[2] Probabtive Value must outweigh Risk of Prejudice United States v

Espinosa 827 F.2d 604, 612 (9th Circuit 1987) Annotated Madison Manuscript

edition. Upon closure Relieving Defendant, the Plaintiff humbly Request to

continue the case. The Plaintiff will press charge’s to Prosecute a Class Action

Law Suit. The Defendant will be Named “Superior Government.” The Plaintiff

to Protect His Identity is Requesting by Order of the Congressional Law statute

Jurisdiction to change the Plaintiff Name to “Plaintiff Entitledment” vrse the

“Superior Government” with a Class Action law Suit, Entitled based on New

Found Discovery Evidence 1, 2. Annotated Judicial Attorney Jurisdiction is

Classified Judge 2 Tort.

(Am. Compl., DE 8 at 1-4.) The Amended Complaint continues in this fashion for an additional

ten pages. (Id., 5-14.) For relief, Plaintiff requests an “Order for the Plaintiff to be Given

‘aderal’ as medicine Court order Monday thru Friday only taken at sun up morning wake up.”

(Id. at 10.) Plaintiff also “needs the Court to order ‘Quetiphine’ at 200 order as needed, for the

Plaintiff to have when needed.” (Id. at 11.) Further, Plaintiff requests “to change the Plaintiff

name from ‘Gamarra’ to ‘Plaintiff Entitlement’ because Plaintiff son share’s the same Last Name

. . . [and] Plaintiff concern is that His son can be Adversly Affected” and “to relieve ‘Supervisor

Paul’ from being a Defendant, changing the Defendant name to ‘Superior Government’.” (Id. at

12.) Finally, Plaintiff “request[s] Fed. R. Civ. P. 8(c) Restitution” and that “the Court issue a

Federal Retainer for any Lience Attorney to Retain the Entitled Jurisdiction the Court Entitled.”

(Id. at 13.)

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III. Subject Matter Jurisdiction

Notwithstanding the liberal pleading standard afforded pro se litigants, federal courts are

courts of limited jurisdiction and may not preside over cases if they lack subject matter

jurisdiction. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 01 (2d Cir. 2000).

A plaintiff seeking to bring a lawsuit in federal court must establish that the court has subject

matter jurisdiction over the action. See Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)

(citing Sharkey v. Quarantillo, 541 F.3d 75, 82 (2d Cir. 2008)). If a district court lacks subject

matter jurisdiction, it must dismiss the action. See FED. R. CIV. P. 12(h)(3); see also Lussier, 211

F.3d at 701. This Court has an obligation to examine its subject matter jurisdiction sua sponte.

See Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006).

Subject matter jurisdiction lies in this Court when a “federal question” is presented, 28

U.S.C. § 1331, or where there is a “diversity of citizenship” and the amount in controversy

exceeds $75,000. See 28 U.S.C. § 1332. Under 28 U.S.C. § 1331, the district courts have

jurisdiction over “all civil actions arising under the Constitution, laws or treaties of the United

States.” 28 U.S.C. § 1331. “The presence or absence of federal-question jurisdiction is

governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists

only when a federal question is presented on the face of the plaintiff’s properly pleaded

complaint.” Whitehurst v. 1199SEIU United Healthcare Workers E., 928 F.3d 201, 206 (2d Cir.

2019) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)); Bracey v. Bd. of Educ. of

City of Bridgeport, 368 F.3d 108, 113 (2d Cir. 2004) (A case “arises under” federal law where

federal law creates the plaintiff’s cause of action, or where “the well-pleaded complaint

necessarily depends on resolution of a substantial question of federal law.”) (internal quotation

marks and citation omitted). A claim invoking federal-question jurisdiction under 28 U.S.C. §

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1331 may be dismissed for lack of subject-matter jurisdiction if it is not colorable, that is, if it is

“immaterial and made solely for the purpose of obtaining jurisdiction” or is “wholly insubstantial

and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83 (1946).

Under 28 U.S.C. § 1332, “a plaintiff must first show that he and the defendants are

citizens of different States. . . . The plaintiff must also allege to a ‘reasonable probability’ that

his or her claims are in excess of the sum or value of $75,000, the statutory jurisdictional

amount.” Perry v. Robles, 23-CV-7492(LTS), 2023 WL 6881993, at *2 (S.D.N.Y. Oct. 16, 2023)

(citing Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006)) (cleaned

up) (additional citation omitted); see also Emiabata v. Farmers Ins. Corp., 848 F. App’x 27, 29

(2d Cir. 2021) (summary order).

DISCUSSION

I. The Amended Complaint Does Not Properly Invoke this Court’s

Subject Matter Jurisdiction

Plaintiff’s Amended Complaint does not allege a basis to invoke this Court’s subject

matter jurisdiction. (See Am. Compl. DE 8, in toto.) Affording the pro se pleading a liberal

construction, the Court has considered whether subject matter jurisdiction lies in this Court under

either Section 1331 or 1332. For the reasons that follow, the Court lacks subject matter

jurisdiction under both statutes.

Addressing federal question jurisdiction pursuant to Section 1331 first, it appears that

Plaintiff seek to invoke this Court’s federal question subject matter jurisdiction by including

various federal statutes (the “Speedy Trial Act” and several sections of Title 18 of the United

States Code) and the Sixth Amendment, in his Amended Complaint. (See Am. Compl., DE 8 at

1-3, 5-6, 8-9.) However, he has not pled any colorable claims. Indeed, Plaintiff has not included

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any facts in support of his claims and appears to include these federal statutes solely as a basis to

invoke this Court’s federal question subject matter jurisdiction. However, merely mentioning a

federal law is insufficient to properly invoke federal question subject matter jurisdiction.

Clarkes v. Hughes, No. 17-CV-00961(JMA)(AYS), 2018 WL 5634932, at *3 (E.D.N.Y. Oct. 30,

2018) (dismissing pro se complaint for lack of subject matter jurisdiction in the absence of “any

facts in support of such [federal] claims and [Plaintiffs] appear to [have] include[d] these federal

statutes solely as a basis to invoke this Court’s federal question subject matter jurisdiction”).

Moreover, Title 18 is the federal criminal code and, as this Court made clear in the M&O,

“criminal statutes do not provide private causes of action.” M&O, DE 5 at 7 (citing Robinson v.

Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994). Indeed, “[g]enerally, violations

of criminal statutes may not serve as the basis for civil remedies unless the specific statute

includes an express or implied private right of action.” Hills v. Liberty Mut. Ins., 14-CV-328S,

2015 WL 1243337, *3 (W.D.N.Y. Mar. 18, 2015) (citing Chrysler Corp. v. Brown, 441 U.S.

281, 316 (1979). Thus, even affording the pro se Amended Complaint a liberal construction, the

Court cannot discern a colorable federal claim. Accordingly, the Amended Complaint does not

properly invoke subject matter jurisdiction pursuant to Section 1331.

Nor does Plaintiff properly invoke this Court’s subject matter jurisdiction under Section

1332. To establish diversity jurisdiction, there must be complete diversity of citizenship between

the plaintiff and the defendant. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553

(2005); Emiabata, 848 F. App’x at 29. This means that a plaintiff cannot be a citizen of the same

state as the defendant. Emiabata, 848 F. App’x at 29 (citing Pa. Pub. Sch. Emps.’ Retirement

Sys. v. Morgan Stanley & Co., 772 F.3d 111, 117-18 (2d Cir. 2014)) (“Section 1332 requires that

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all plaintiffs must be citizens of states diverse from those of all defendants.”) (internal quotation

marks omitted). Here, Plaintiff has not alleged the state where he is a citizen nor has he included

the state where the Defendant is a citizen. (See Am. Compl., DE 8, in toto.) Notably, Plaintiff

has omitted a last name and an address for the Defendant as well. (Id.) “[I]t is well-established

that ‘[t]he party seeking to invoke jurisdiction under 28 U.S.C. § 1332 bears the burden of

demonstrating that the grounds for diversity exist and that diversity is complete.’” Herrick Co. v.

SCS Commc’ns, Inc., 251 F.3d 315, 323 (2d Cir. 2001) (quoting Advani Enter., Inc. v.

Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir. 1998)).

Nor has Plaintiff met the amount in controversy requirement. Plaintiff does not seek any

monetary damages; rather, he seeks injunctive relief. (See Am. Compl., DE 8 at 10-13.) “In an

action for injunctive or declaratory relief, the amount in controversy is to be ‘calculated from the

plaintiff’s standpoint; the value of the suit’s intended benefit or the value of the right being

protected or the injury being averted constitutes the amount in controversy when damages are not

requested.’” Speer v. Deutsche Bank Nat’l Tr. Co. as Tr. for HS1 Asset Securitization Corp. Tr.

2006 OPT4 Mortg. Pass Through Certificates Series 2006 OPT4, No. 3:23-CV-01492, 2024 WL

340777, at *2 (D. Conn. Jan. 30, 2024) (quoting Correspondent Servs. Corp. v. First Equities

Corp., 442 F.3d 767, 769 (2d Cir. 2006) (emphasis added) (add’l citation omitted). That the

value of the relief sought exceed the sum or value of $75,000 is dubious, the Court need not

reach that question in the absence of diversity of citizenship. Thus, Plaintiff has not established

this Court’s subject matter jurisdiction lies under Section 1332.

Again, although courts hold pro se complaints “to less stringent standards than formal

pleadings drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980), pro se litigants must

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establish subject matter jurisdiction. Given the absence of subject matter jurisdiction, the

Amended Complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure

12(h)(3).

II. Leave to Amend

A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when

a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo

v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks and citation

omitted). However, 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, 861 F.2d at 42; see also In re McDonald, 489

U.S. 180, 184 (1989) (“Every paper filed with the Clerk of this Court, no matter how repetitious

or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s

responsibility is to see that these resources are allocated in a way that promotes the interests of

justice.”). Here, Plaintiff has already been afforded an opportunity to amend his complaint. Given

the substance of the Amended Complaint, further amendment would be futile. Rahim v. Secretary,

Establishment Div., Gov’t of People’s Republic of Bangl., 481 F. App’x 18, 19 (2d Cir. 2012)

(affirming district court’s dismissal of pro se plaintiff’s complaint without leave to amend where

complaint was dismissed for lack of subject matter jurisdiction). Accordingly, leave to further

amend the complaint is denied.

CONCLUSION

Based on the foregoing, the Amended Complaint is dismissed, without prejudice to refile

in an appropriate forum, for lack of subject matter jurisdiction pursuant to Federal Rule of Civil

Procedure 12(h)(3). Further, leave to further amend the complaint is denied. The Clerk of the

Court shall enter judgment accordingly, mail a copy of this Memorandum and Order to the pro se

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Plaintiff at his address of record, and note such mailing on the docket.

The Court certifies pursuant to 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 is denied for the purpose

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

SO ORDERED.

Dated: Central Islip, New York

October 17, 2024

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge

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