# Darling v. Sise

> District Court, N.D. New York · October 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10660134

## Case

- **Court:** District Court, N.D. New York
- **Decided:** October 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________

MICHAEL D. DARLING,
Plaintiff,

v. 5:24-cv-1003
(BKS/TWD)

JOSEPH M. SISE,
Defendant.
_______________________________________________

APPEARANCES: OF COUNSEL:

MICHAEL D. DARLING
Plaintiff, pro se
24-B-0396
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13024

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
Michael D. Darling (“Plaintiff”) asserting a claim pursuant to 42 U.S.C. § 1983. Dkt. No. 1.
Plaintiff, who is currently in the custody of the New York State Department of Corrections and
Community Service (“DOCCS”) at Auburn Correctional Facility, has not paid the filing fee for
this action and seeks leave to proceed in forma pauperis (“IFP”). See Dkt. Nos. 2, 4.
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)).1

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. 4, he is granted permission to
proceed IFP.2
III. BACKGROUND
In March or April of 2023, Plaintiff hired attorney Joseph M. Sise to defend him in a
criminal matter. Dkt. No. 1 at 4.3 Plaintiff contends “Mr. Sise violated Article VI of the U.S.
Constitution . . . [and] ignore or violated the fourth, fifth, sixth and fourteenth Amendments . . .
.” Id. In support of his claims, Plaintiff asserts Mr. Sise failed to:

investigate in compliance with [Plaintiff]’s orders . . . report or do
anything about the State Trooper threatening [Plaintiff] . . . inform
[Plaintiff] in writing that he was a judge in the county where
[Plaintiff’s] case was being held . . . submit any motions for anything
. . . [and] hold any hearings to challenge anything . . . .

1 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.”).

2 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.

3 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. at 6. He also alleges Sise “[k]ept telling me the jury will convict you, yet said the case was
week” and “forced [Plaintiff] to sign waivers.” Id. at 6. Regarding relief, Plaintiff states “I
would like my $25,000 returned.” 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, emphasis in
original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds 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).4 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.

Generally, 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).

4 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).

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.
Further, his complaint references various portions of the United States Constitution and United
States Supreme Court Decisions. See id. at 4, 6-7.5
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). Here, Plaintiff
has not alleged the sole Defendant, Mr. Sise, acted under the color of state law, therefore, the

Defendant cannot be sued under § 1983. See Basile v. Connolly, 538 F. App’x 5, 7 (2d Cir.
2013) (Summary Order) (“[P]rivate individuals . . . cannot be sued under 42 U.S.C. § 1983
absent a plausible allegation that they acted under color of state law.”).
Moreover, there is nothing in Plaintiff’s complaint which would indicate the Court may
exercise diversity jurisdiction pursuant to 28 U.S.C. § 1332. First, the requested $25,000 does

5 More specifically, Plaintiff cites to the U.S. Supreme Court’s decisions in Missouri v. Frye,
Lafler v. Cooper, and Premo v. Moore. See Dkt. No. 1 at 7; see also Missouri v. Frye, 566 U.S.
134 (2012); Lafler v. Cooper, 566 U.S. 156 (2012); Premo v. Moore, 562 U.S. 115 (2011).
Additionally, Plaintiff appears to reference, inter alia, federal criminal statutes, provisions of
New York’s general obligations law and civil practice law and rules, and the ABA’s model rules
of professional conduct. See Dkt. No. 1 at 6-10.
not satisfy the statutory amount in controversy requirement. See Dkt. No. 1 at 5; 28 U.S.C. §
1332(a). Second, the complaint is completely devoid of any information concerning the
Defendant’s domicile; therefore, it is not clear whether the parties are “citizens of different
States.” See 28 § 1332(a)(1); see also, e.g., 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 . .
. .”); 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). It follows that Plaintiff
has failed to invoke diversity jurisdiction. 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 undersigned 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
Defendant and must demonstrate that a case or controversy exists between the Plaintiff and the
Defendant which Plaintiff has a legal right to pursue and over which this Court has jurisdiction.
If Plaintiff is alleging the Defendant 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 complaint (Dkt. No. 1) 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.® 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: October 25, 2024
Syracuse, New York /
Thérése Wiley Dancks
United States Magistrate Judge

6 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
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
David J. CASH, Plaintiff,
v.
BERNSTEIN, MD, Defendant.
No. 09 Civ.1922(BSJ)(HBP).
|
Oct. 26, 2010.
REPORT AND RECOMMENDATION1
1 At the time the action was originally filed, the Honorable Leonard B. Sand, United States District Judge, granted
plaintiff's application for in forma pauperis status based on plaintiff's ex parte submission (Docket Item 1). Although
the present application seeking to revoke plaintiff's in forma pauperis status is non-dispositive, I address it by way of a
report and recommendation to eliminate any appearance of a conflict between the decision of a district judge and that
of a magistrate judge.
PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES, United States District Judge,
I. Introduction
By notice of motion dated March 4, 2010 (Docket Item 11), defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke plaintiff's
in forma pauperis (“IFP”) status on the ground that plaintiff has previously had at least three Section 1983 actions dismissed
as frivolous, malicious or failing to state a claim upon which relief could be granted, and has not shown that he is in imminent
danger of serious physical injury. Defendant further seeks an order directing that the action be dismissed unless plaintiff pays
the full filing fee within thirty (30) days. For the reasons set forth below, I respectfully recommend that defendant's motion
be granted.
II. Facts
Plaintiff, a sentenced inmate in the custody of the New York State Department of Correctional Services, commenced this action
on or about January 12, 2009 by submitting his complaint to the Court's Pro Se office. Plaintiff alleges, in pertinent part, that he
has “a non-healing ulcer that is gane green [sic ]” and that defendant Bernstein “did not want to treat the ulcer right” (Complaint,
dated March 3, 3009 (Docket Item 2) (“Compl.”), at 3).
The action was originally commenced against two defendants—Dr. Bernstein and Dr. Finkelstein. The action was dismissed as
to Dr. Finkelstein because the complaint contained no allegations whatsoever concerning Dr. Finkelstein (Order dated February
18, 2010 (Docket Item 9)).
On March 4, 2010, the sole remaining defendant—Dr. Bernstein—filed the current motion. Plaintiff failed to submit a response.
Accordingly, on August 20, 2010, I issued an Order advising plaintiff that if he wished to oppose the motion, he must submit
(Order dated August 20, 2010 (Docket Item 15)). The only submission plaintiff has made in response to my Order is a multi-
part form issued by the New York State Department of Correctional Services entitled “Disbursement or Refund Request.”2
By this form, plaintiff appears to request that the New York State Department of Correctional Services pay the filing fee for
this action. The form is marked “Denied.”
2 Plaintiff sent this form directly to my chambers, 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.
III. Analysis
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. Although an indigent, incarcerated individual need not prepay the filing fee at the time 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. 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent abuse of the judicial
system by inmates, paragraph (g) of this provision denies incarcerated individuals the right to proceed without prepayment
of the filing fee if they have repeatedly filed meritless actions, unless such an individual shows that he or she is in imminent
danger of serious physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d Cir.2004) (“[T]he purpose of the PLRA ... was
plainly to curtail what Congress perceived to be inmate abuses of the judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19
(2d Cir.1997). Specifically, paragraph (g) provides:
*2 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding
under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner
is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
If an inmate plaintiff seeks to avoid prepayment of the filing fee by alleging imminent danger of serious physical injury, there
must be a nexus between the serious physical injury asserted and the claims alleged. Pettus v. Morgenthau, 554 F.3d 293, 298
(2d Cir.2009).
Section 1915(g) clearly prevents plaintiff from proceeding in this action without prepayment of the filing fee. The memorandum
submitted by defendant establishes that plaintiff has had his IFP status revoked on at least four prior occasions as a result of
his repeatedly filing meritless actions.
• In 2005, plaintiff commenced an action in the United States District Court for the Northern District of New York seeking to
have his infected leg amputated. Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 WL 4333776 (N.D.N.Y. Dec.
5, 2007). In that matter, the Honorable Norman A. Mordue, Chief United States District Judge, accepted and adopted
the Report and Recommendation of the Honorable David E. Peebles, United States Magistrate Judge, that plaintiff had
brought three or more prior actions that had been dismissed for failure to state a claim and that plaintiff's IFP status should,
therefore, be revoked. 2007 WL 4333776 at *1–*2.
3 It appears that plaintiff uses the names David J. Cash and Dennis Nelson interchangeably. In his complaint in this matter,
plaintiff states that the Departmental Identification Number, or DIN, assigned to him by the New York State Department
the DOCS form described in footnote two bears the docket number of this action, but is signed in the name of Dennis
Nelson and was sent in an envelope identifying the sender as Dennis Nelson. A subsequent action has been filed in this
Court in which the plaintiff identifies himself as Dennis Nelson but lists his DIN as 94–B–0694, the same DIN used by
plaintiff here. Finally, plaintiff has 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 facts, I conclude that David Cash and Dennis Nelson are
both names used by plaintiff.
• In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP), 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff again
filed an action concerning the medical care he was receiving for his left leg. The Honorable Thomas J. McAvoy, United
States District Judge, accepted the Report and Recommendation of Magistrate Judge Peebles, and revoked plaintiff's IFP
status and dismissed the action on the ground that plaintiff had previously commenced at least three actions that had been
dismissed on the merits. 2008 WL 3836387 at *1, *7.
• In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008), Judge McAvoy
again revoked plaintiff's IFP status on the ground that plaintiff had commenced three or more actions that constituted
“strikes” under Section 1915(g) and had not shown an imminent threat of serious physical injury. 2008 WL 268215
at *1–*2.
• Finally, in Nelson v. Chang, No. 08–CV–1261 (KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10, 2009), the Honorable
Kiyo A. Matsumoto, United States District Judge, also found, based on the cases discussed above, that plaintiff had
exhausted the three strikes permitted by Section 1915(g) and could not proceed IFP in the absence of a demonstration
of an imminent threat of serious physical injury. 2009 WL 367576 at *2–*3.
*3 As defendant candidly admits, there is one case in which plaintiff's leg infection was found to support a finding of an
imminent threat of serious physical injury sufficient to come within the exception to Section 1915(g). Nelson v. Scoggy, No.
9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2 (N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment was
subsequently granted for defendants in that case, and the complaint was dismissed. Judge Mordue concluded that there was
no genuine issue of fact that plaintiff had received adequate medical care for his leg wound and that the failure of the leg to
heal was the result of plaintiff's own acts of self-mutilation and interference with the treatment provided. Nelson v. Scoggy, No.
9:06–CV–1146 (NAM)(DRH), 2009 WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4
4 Although the form complaint utilized by plaintiff expressly asks about prior actions involving the same facts, plaintiff
disclosed only the Scoggy action and expressly denied the existence of any other actions relating to his imprisonment
(Compl. at 6).
In light of the foregoing, there can be no reasonable dispute that plaintiff has exceeded the three “strikes” allowed by Section
1915(g) and that he cannot, therefore, proceed here without prepaying the filing fee unless he demonstrates 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 of serious physical injury is the bare statement in the complaint that plaintiff “need[s] to go
back to a wound speci [a]list before the gane green [sic ] kills [him]” (Compl. at 5). “However, unsupported, vague, self-
serving, conclusory speculation is not sufficient to show that Plaintiff is, in fact, in imminent danger of serious physical harm.”
Merriweather v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003)
and 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)
(imminent danger exception to Section 1915(g) requires “specific fact allegations of ongoing serious physical injury, or of a
pattern of misconduct evidencing the likelihood of imminent serious physical injury”). Given the plaintiff's history, as set forth
in the cases described above, I conclude that this vague statement is insufficient to support a finding that plaintiff is in imminent
danger of serious physical injury.5
is serious. However, in granting summary judgment dismissing an action last year based on the same allegations, Judge
Mordue of the Northern District found that there was no genuine issue of fact that plaintiff's own conduct was responsible
for the ineffectiveness of the treatment he was provided:
Furthermore, to the extent that Nelson's medical treatment was delayed, much of the delay was due to his own
refusal to cooperate with medical staff and his self-mutilations. Nelson's actions to thwart the medical treatment of his
wound cannot be construed as interference or indifference by anyone else.... [T]he medical treatment Nelson received
complied with constitutional guarantees as it was appropriate, timely, and delayed only by Nelson's own actions.
Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
Given plaintiff's total failure to respond to the pending motion and his failure to even deny that he is actively thwarting
treatment of his wound, it would be sheer speculation for me to conclude that he is in imminent danger of a serious
injury as a result of defendant's conduct.
IV. Conclusion
Accordingly, for all the foregoing reasons, I find that plaintiff has had three or more prior actions dismissed as being frivolous,
malicious or failing to state a claim and that plaintiff's in forma pauperis status should, therfore, be revoked. If your Honor
accepts this recommendation, I further recommend that the action be dismissed unless plaintiff pays the filing fee in full within
thirty (30) days of your Honor's final resolution of this motion.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14)
days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto)
shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Barbara S. Jones,
United States District Judge, 500 Pearl Street, Room 1920, and to the Chambers of the undersigned, 500 Pearl Street, Room
750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL
PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34,
38 (2d Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d
298, 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–
38 (2d Cir.1983).
All Citations
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
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew S. BENNETT and Kristina M. McDonald, Plaintiffs,
v.
Don BAILEY and Route 11 Motorsports, Defendants.
5:20-CV-903 (GTS/ATB)
|
Signed 08/17/2020
Attorneys and Law Firms
ANDREW S. BENNETT and KRISTINA M. McDONALD, Plaintiffs Pro Se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent to the court for review a complaint brought pursuant to 42 U.S.C. § 1983, filed by plaintiffs Andrew
S. Bennett and Kristina M. McDonald. (Dkt. No. 1). Plaintiffs have also applied to proceed in forma pauperis (“IFP”).1 (Dkt.
No. 2).
1 Both plaintiffs have signed the complaint and the IFP application and are each representing themselves. Because
this court is recommending dismissal for lack of jurisdiction, the court will not require plaintiffs to file separate IFP
applications.
I. IFP Application
Plaintiffs declare in their IFP application that they are unable to pay the filing fee. (Dkt. No. 2). After reviewing his application,
this court finds that plaintiffs are financially eligible for IFP status.
However, in addition to determining whether plaintiffs meet the financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall
dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §
1915 (e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or
in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court
process as well as to discourage the waste of judicial 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 show liberality toward pro se litigants, and must use extreme caution in
ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to
respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss
a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
II. Complaint
Plaintiffs allege that on March 17, 2020, they purchased a car from the defendant Don Bailey and his company Route 11
Motorsports. (Complaint (“Compl.”) ¶ 4 at p.2 (Facts)). Plaintiffs claim that defendant Bailey gave them a “90 Day Warranty”
which he is not honoring. (Id.) Two days after they purchased the vehicle, the motor began “knocking,” and plaintiffs contacted
Don Bailey, who has failed to rectify the situation. (See Compl. generally ¶ 4 at pp.3-6). Plaintiffs seek a full refund of the
purchase price of the vehicle and damages for pain and suffering for a total of $10,500. (Compl. ¶¶ 5-6).
III. Subject Matter Jurisdiction
A. Legal Standards
*2 Federal courts are courts of limited jurisdiction, have only the power that is authorized by Article III of the Constitution,
and may only preside over cases that fall within the subject matters delineated by Congress. Bender v. Williamsport Area School
Dist., 475 U.S. 534, 541 (1986) (citation omitted). The court must determine whether it has subject matter jurisdiction, and
must dismiss a case at any stage of the proceedings if it determines that jurisdiction is lacking. Cave. v. East Meadow Union
Free School Dist., 514 F.3d 240, 250 (2d Cir. 2008).
In addition, federal courts have an “independent obligation” to consider the presence or absence of subject matter jurisdiction
sua sponte. Leopard Marine & Trading, Ltd. v. Easy Street, Ltd., 896 F.3d 174, 181 (2d Cir. 2018) (quoting In re Quigley Co.,
Inc., 676 F.3d 45, 50 (2d Cir. 2012). Subject matter jurisdiction can never be waived or forfeited. ACCD 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 (S.D.N.Y. Jan. 3, 2013) (citing Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 434-35 (2011)).
Federal question jurisdiction pursuant to 28 U.S.C. § 1331 provides a basis for jurisdiction when the plaintiff brings a civil
action that arises “under the Constitution, laws, or treaties of the United States.” 28 U.S. C. § 1331. Diversity jurisdiction is
present when an action is between citizens of different states, and when the amount in controversy is in excess of $75,000.00.
28 U.S.C. § 1332(a)(1).
B. Application
1. Section 1983
a. Legal Standards
In order to bring a civil rights action under 42 U.S.C. § 1983, the plaintiff must establish that a defendant, who acts under color
of state law, has caused the deprivation of a right protected by the federal constitution or laws. 42 U.S.C. § 1983. A person acts
under color of state law when he or she acts in his or her official capacity, “clothed with the authority of state law,” or acts under
“pretense” of law by purporting to act with official power. Pleasure Island, Inc. v. City of New York, No. 12 Civ. 4699, 2013
WL 2311837, at *5-6 (E.D.N.Y. May 24, 2013) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)).
The requirement that the defendant acted under “color of state law” is jurisdictional. Lucas v. Riggi, No. 07-CV-6200, 2008 WL
Mfrs. Mut. Ins. Co. v. Sullivan, 526 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 willful participation in joint activity with the state. Sybalski v. Indep. Grp. Home Living Program,
Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per curiam). The nexus to the state must be so close as to be fairly treated as that of the
state itself. Tancredi v. Metro Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (citations omitted).
b. Application
The defendants in this action are a private individual and what appears to be his car dealership. There is no indication that either
of the defendants acts under color of state law. Therefore there is no jurisdiction under section 1983 for the plaintiffs’ case.
The court realizes that the plaintiffs are pro se and will attempt to determine whether there is any other jurisdictional basis for
plaintiffs to bring an action in this court pursuant to federal question or diversity jurisdiction.2
2
A pro se plaintiff's pleadings are interpreted to raise the strongest arguments that they suggest. Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994).
2. Magnuson-Moss Warranty—Federal Trade Commission Act (“MMWA”), 15 U.S.C. § 2301
a. Legal Standards
*3 The MMWA, is also known as the federal “lemon law.” Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 222 (2d Cir.
2017). The MMWA “is a remedial statute designed ‘to improve the adequacy of information available to consumers, prevent
deception, and improve competition in the marketing of consumer products.’ ” Id. (quoting Motor Vehicle Mfrs. Ass'n of U.S.,
Inc. v. Abrams, 899 F.2d 1315, 1317 (2d Cir. 1990)) (quoting 15 U.S.C. § 2302(a)). The MMWA allows “a consumer who
is damaged by the failure of a supplier, warrantor, or service contractor to comply with ... a written warranty [or] implied
warranty ... [to] bring suit for damages and other legal and equitable relief.’ ” Id. (quoting 15 U.S.C. § 2310(d)(1)). However,
the MMWA provides for federal jurisdiction under certain circumstances. Id. MMWA claims may be brought in federal court
only if the amount in controversy meets or exceeds $50,000 (exclusive of interests and costs), computed on the basis of all
claims in the action. Id. (citing § 2310(d)(3)(B)).
b. Application
Plaintiffs in this action allege that the value of the car was $7,000.00 and their “pain and suffering” was worth another $3,500.00
for a total of $10,500.00 in damages. (Compl. ¶¶ 5-6). Thus, even if plaintiffs could make a claim under the MMWA for the
failure of defendants to abide by their warranty, and even if they had cited the appropriate statute, plaintiffs cannot meet the
jurisdictional amount for bringing an MMWA claim in federal court.
3. Contract Claims
a. Legal Standards
Contract actions are generally state law claims, “governed by state law standards and analyzed using the familiar elements
applied in a New York breach of contract action.” Liana Carrier Ltd. v. Pure Biofuels Corporation, 672 F. App'x 85, 92 (2d Cir.
complaint alleging a violation of a state cause of action, when Congress has determined that there should be no private, federal
cause of action for the violation, does not state a claim ‘arising under the Constitution, laws, or treaties of the United States.’ ”
Id. (quoting Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817 (1986)).
b. Application
Plaintiffs in this case essentially argue that defendant Bailey did not honor his agreement to fix the plaintiffs’ car and now does
not return their calls or texts. (Compl. ¶ 4 at pp.5-6). As stated above, plaintiffs do not meet the jurisdictional minimum for an
MMWA claim. To the extent that plaintiffs are trying to state a contract claim or a simple warranty claim, there is no jurisdiction
in federal court for this action, given the facts of plaintiffs’ case. While federal courts decide state law claims, those claims are
generally either supplemental to a federal claim3 or brought under diversity jurisdiction. There 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 less than the jurisdictional amount of $75,000.00. Thus, there is no diversity jurisdiction. Because
there is no jurisdiction to decide plaintiffs’ claims, I must recommend dismissal.
3 28 U.S.C. § 1367(a) provides that
in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution. Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of additional parties.
IV. Opportunity to Amend
A. Legal Standards
*4 Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to
amend at least once, however, leave to re-plead may be denied where any amendment would be futile. Hill v. Curcione, 657
F.3d 116, 123-24 (2d Cir. 2011); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the
problem with plaintiffs’ causes of action is substantive such that better pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted).
B. Application
There is no subject matter jurisdiction for plaintiffs to bring this action in federal court. It does not appear that any amendment or
additional pleading will cure the defects in jurisdiction. Because there is no subject matter jurisdiction, the court will recommend
dismissing the action without prejudice to plaintiffs bringing their claims in the appropriate state court. However, such dismissal
should be without the opportunity to amend since plaintiffs will not be able to cure the deficiency in their complaint with better
pleading.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiffs’ application to proceed IFP (Dkt. No. 2) is GRANTED ONLY TO THE EXTENT NECESSARY
TO FILE THIS ACTION, and it is
RECOMMENDED, that the plaintiffs’ complaint be DISMISSED WITHOUT PREJUDICE FOR LACK OF SUBJECT
MATTER JURISDICTION, BUT WITHOUT THE OPPORTUNITY TO AMEND, and 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
objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)
(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
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
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew S. BENNETT; and Kristina M. McDonald, Plaintiffs,
v.
Don BAILEY; and Route 11 Motorsports, Defendants.
5:20-CV-0903 (GTS/ATB)
|
Signed 09/28/2020
Attorneys and Law Firms
ANDREW S. BENNETT and KRISTINA M. McDONALD, Plaintiffs, Pro Se, 1137 Roberts Hollow Road, Lowman, New
York 14861.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se habeas breach-of-contract action filed by Andrew S. Bennett and Kristina M.
McDonald (“Plaintiffs”) against Don Bailey and Route 11 Motorsports (“Defendants”) pursuant to 42 U.S.C. § 1983, is United
States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Plaintiffs’ Complaint be dismissed
without prejudice for lack of subject-matter jurisdiction pursuant to 28 U.S.C. § 1915 and that such dismissal should be without
prior leave to amend. (Dkt. No. 3.) Plaintiffs have not filed an objection to the Report-Recommendation, and the time in which
to do so has expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter's thorough Report-Recommendation,
the Court can find no clear-error in the Report-Recommendation.1 Magistrate Judge Baxter employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted
and adopted in its entirety for the reasons set forth therein, and Plaintiffs’ Complaint is dismissed without prejudice for lack
of subject-matter jurisdiction.
1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear-
error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Id.; see also Batista 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 judge's] report to which no specific objection
is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 3) is ACCEPTED and ADOPTED in its
entirety; and it is further
ORDERED that Plaintiffs’ Complaint (Dkt. No. 1) is DISMISSED without prejudice for lack of subject-matter jurisdiction.
All Citations
Not Reported in Fed. Supp., 2020 WL 5775231
End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
2016 WL 7077082
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jamal RASHID, Plaintiff,
v.
Dr. SUFYAN, Defendant.
Civ. No. 1:16-CV-1094(FJS/DJS)
|
Signed 11/04/2016
Attorneys and Law Firms
JAMAL RASHID, 15-A-4424, Great Meadow Correctional Facility, Box 51, Comstock, New York 12821, Plaintiff, Pro Se.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has sent for review a civil Complaint filed by pro se Plaintiff Jamal Rashid, who is presently incarcerated in
Great Meadow Correctional Facility. Dkt. No. 1, Compl. Plaintiff has not paid the filing fee, but instead submitted a Motion to
Proceed In Forma Pauperis (“IFP”).1 Dkt. No. 5, IFP App. By separate Order, dated November 4, 2016, this Court granted
Plaintiff’s Application to Proceed IFP. Now, in accordance with 28 U.S.C. § 1915(e), the Court will sua sponte review the
sufficiency of the Complaint.
1 This case was initially brought in September 2016, but was administratively closed due to the fact that Plaintiff’s IFP
Application was incomplete. Dkt. Nos. 2 & 4. Upon the filing of a complete IFP Application, this matter was reopened
and forwarded to the undersigned for review. Dkt. Nos. 5 & 6.
I. DISCUSSION
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, “the
court shall dismiss the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails
to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court’s responsibility to determine that a plaintiff may properly maintain his
complaint before permitting him to proceed further with his action.
In reviewing a pro se complaint, this Court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990), and should exercise “extreme caution ... in ordering sua sponte dismissal of a pro se complaint before
the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson
v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis in original) (citations omitted). 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, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). Although the court should construe the factual allegations in the
light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’–‘that
the pleader is entitled to relief.’ ” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). A pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Id. at 678 & 679 (further citing Bell Atl. Corp. v. Twombly, 550 U.S. at
555, for the proposition that Federal Rule of 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 notice of the claims against
them” are subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
B. Allegations Contained in Plaintiff’s Complaint
*2 According to the Complaint, in late-October/early-November 2013, after being choked from behind and losing
consciousness, Plaintiff awoke and walked to a hospital for help. Compl. at pp. 4-5.2 The hospital referred Plaintiff to Defendant
Dr. Sufyan for a “shattered orbital floor in his right eye, a broken jaw, and bone fragments in his sinus box.” Id. Dr. Sufyan
performed plastic surgery, consisting of placing metal in Plaintiff’s face in three places—eyes, nose, and jaw. Id. at p. 4.
According to Plaintiff, complications arose wherein his eye bled for a month, screws were falling out, he experienced headaches,
and had trouble eating. Id. at pp. 4-5. When Plaintiff complained to Dr. Sufyan about a screw that came loose, Dr. Sufyan replied
that he should not worry because the brace would come out shortly. Id. at p. 5. Medical professionals have advised Plaintiff that
the plates were not placed correctly and that the hardware failed.3 Id.
2 Citations to the Plaintiff’s Complaint are to the page numbers automatically assigned by the Court’s Case Management
Electronic Case Files (“CM/ECF”) System.
3 Plaintiff mentions that he had retained an attorney to represent him in a malpractice action against Dr. Sufyan, but the
attorney apparently stopped representing him at some point. It is not clear whether a malpractice action has been brought
by Plaintiff and, if so, what the status of such action is at the present time.
The Court notes that in bringing this action, Plaintiff utilized a pro forma complaint typically used by inmates who are seeking
to vindicate violations of their constitutional rights pursuant to 42 U.S.C. § 1983. That statute “establishes a cause of action for
‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” German v.
Fed. Home Loan Mortg. Corp., 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. § 1983); see also Myers v. Wollowitz, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that
“§ 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights”). Yet, in the
civil cover sheet accompanying his Complaint, Plaintiff indicates that this action is one of personal injury—medical malpractice
—and he states that he is bringing this action for “inadequate treatment, negligence (medical miscondut), [and] violation of
constitutional right—4th.” Dkt. No. 1-1, Civil Cover Sheet.
It is well settled that a federal court, whether trial or appellate, is obligated to notice on its own motion the basis for its own
jurisdiction. City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, 512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 F.2d
591, 605 (2d Cir. 1988) (challenge to subject matter jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3) (court may raise
basis of its jurisdiction sua sponte). When subject matter jurisdiction is lacking, dismissal is mandatory. United States v. Griffin,
303 U.S. 226, 229 (1938); 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.”). In light of his pro se status, and because of the lack of clarity regarding the basis for
the Court’s jurisdiction, the Court will sua sponte assess whether subject matter jurisdiction is present here under both federal
With regard to the Court’s federal question jurisdiction, the Court has “original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Thus I start my analysis with the federal statute by which
Plaintiff has invoked in order to remedy violations of his constitutional rights.
First, after reviewing the facts of this case, the Court is unsure as to the precise Constitutional right Plaintiff asserts has been
violated. But even more problematic for Plaintiff is the fact that the a party may not be held liable under § 1983 unless it can
be established that he has acted under the color of State law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994) (noting
state action requirement under § 1983); Wise v. Battistoni, 1992 WL 280914, at *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations
omitted). Thus, State action is an essential element of any § 1983 claim. See Gentile v. Republic Tobacco Co., 1995 WL 743719,
at *2 (N.D.N.Y. Dec. 6, 1995) (citing Velaire v. City of Schenectady, 862 F. Supp. 774, 776 (N.D.N.Y. 1994) (citation omitted)).
*3 From all reasonable interpretations of the facts contained in the Complaint, it appears that Defendant Dr. Sufyan is a
private surgeon who is employed at the Williams Center Plastic Surgery Specialists, which Plaintiff states is located in Latham,
New York. According to the Complaint, it appears that Dr. Sufyan provided medical care to Plaintiff prior to the Plaintiff’s
incarceration.4 No where in the Complaint does Plaintiff allege that Dr. Sufyan provided medical care for him on behalf of the
State, at the request of the State, or that Dr. Sufyan has any connection to the State such that his actions could be categorized
as acting under color of State law. Having failed to show that the Defendant acted under color of State law, Plaintiff fails to
state a cognizable cause of action against Defendant Sufyan pursuant to 42 U.S.C. § 1983. Thus, the Court recommends that
this claim be dismissed from this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
4 Indeed, despite Plaintiff’s current incarcerated status, there is no indication that Plaintiff’s interaction with Dr. Sufyan
occurred while Plaintiff was in custody. According to the Complaint, Plaintiff began his relationship with Defendant in
October/November of 2013 when, after visiting a hospital, Plaintiff was referred to him for treatment. Compl. at p. 4.
Although unclear, it seems that Plaintiff’s criminal charge may relate to the reason he sought medical care. Id. at p. 5
(noting his belief that his retained civil attorney refused to continue the case due to his criminal case, which “started after
someone choked [Plaintiff] from behind until [he] was unconcious” after which he went to the hospital). Plaintiff began
experiencing negative side effects from his surgery from some unspecified date, possibly in 2014, through the date the
Complaint was signed. Id. at pp. 4-5 & 7. According to the Department of Corrections and Community Supervision
(“DOCCS”), his current incarceration began in November 2015. See DOCCS Inmate Information Data, available at
http://nysdoccslookup.doccs.ny.gov (information obtained for DIN 15-A-4424). While it is not clear whether Plaintiff
served any time in prison during the pendency of the criminal proceeding, and it is not clear when his he stopped getting
treatment from Dr. Sufyan, the facts set forth in the Complaint suggest that during the relevant time in question, he was
not in prison and was able to travel to his various medical appointments by “medicab”. Compl. at p. 5.
Because the Plaintiff has not set forth a cognizable claim pursuant to this Court’s federal question jurisdiction, the I will consider
whether the Court has subject matter jurisdiction under 28 U.S.C. § 1332, the statute conferring diversity jurisdiction. For
diversity jurisdiction to exist, the matter in controversy must exceed $75,000 and must be between
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.
28 U.S.C. § 1332(a).
For diversity jurisdiction purposes, an individual’s citizenship is the individual’s domicile, which is determined on the basis of
¶ 102.34[2] (3d ed. 1998)).
In the “Parties” section of the Complaint, Plaintiff provides a Comstock, New York, address for himself.5 For Defendant Dr.
Sufyan, Plaintiff lists a Latham, New York address, which, upon information and belief, is his place of employment. Plaintiff’s
claim sounds in medical malpractice and negligence and he seeks compensation for his pain and suffering in the amount of
$2,100,000. While on its face the amount in controversy well exceeds the $75,000 as required by the statute, because both parties
apparently reside in the same State, namely, New York State, and thus diversity jurisdiction is lacking. Accordingly, the Court
recommends dismissing Plaintiff’s State claims, to the extent he has asserted any, due to a lack of subject matter jurisdiction.6
5 As previously noted, Rashid is currently incarcerated at the Great Meadow Correctional Facility. Compl. at p. 1.
6 This is not a ruling nor finding on the merits of any State claim Plaintiff seeks to pursue against Defendant.
II. CONCLUSION
*4 In light of the above discussion, the undersigned has determined that this Court lacks the subject matter jurisdiction
necessary to maintain this action. WHEREFORE, it is hereby
RECOMMENDED, that this entire action be sua sponte dismissed due to lack of subject matter jurisdiction; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
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. 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, 89 (2d Cir. 1993)
(citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 72 & 6(a).
All Citations
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
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jamal RASHID, Plaintiff,
v.
Dr. SUFYAN, Plastic Surgeon, Williams Center Plastic Surgeons Specialists, Defendant.
1:16-CV-1094 (FJS/DJS)
|
Signed 12/05/2016
Attorneys and Law Firms
JAMAL RASHID, 15-A-4424, Great Meadow Correctional Facility, Box 51, Comstock, New York 12821, Plaintiff pro se.
ORDER
SCULLIN, Senior Judge
*1 In a Report-Recommendation and Order dated November 4, 2016, Magistrate Judge Stewart, after conducting a review of
the sufficiency of Plaintiff's complaint pursuant to 28 U.S.C. § 1915(e), concluded that the Court did not have subject matter
jurisdiction over this matter either under federal question jurisdiction or diversity jurisdiction. Therefore, he recommended that
the Court dismiss this action. See Dkt. No. 8 at 7.
On November 28, 2016, the Court received for filing a document, which the Court has construed as Plaintiff's objections to
Magistrate Judge Stewart's recommendation. See Dkt. No. 9. In that document, Plaintiff does not address the jurisdictional issue
but, rather, discusses his medical problems and acknowledges that he was not incarcerated when Defendant Dr. Sufyan violated
his right, under the Eighth Amendment, to have adequate medical care. See id. at 1.
Whether Plaintiff is attempting to assert his claim against Defendant Dr. Sufyan under the Fourth Amendment or the Eighth
Amendment does not change the fact that Plaintiff's complaint does not contain any allegations from which the Court can draw
the reasonable inference that, at the time Defendant Dr. Sufyan treated Plaintiff, he did so “on behalf of the State, at the request
of the State, or ... ha[d] any connection 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 Court agrees with Magistrate Judge Stewart that Plaintiff has failed to state a cause of action against
Defendant Dr. Sufyan pursuant to 42 U.S.C. § 1983; and, therefore, the Court lacks federal question jurisdiction over this matter.
Likewise, there is nothing in Plaintiff's complaint or in his objections to Magistrate Judge Stewart's recommendation 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 parties appear to be residents of the State of New York. See Dkt. No. 8 at 7. The
Court agrees with this assessment and, therefore, concludes that it lacks diversity jurisdiction over this matter.
Accordingly, for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Stewart's November 4, 2016 Report-Recommendation and Order is ACCEPTED in its
entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED for lack of subject matter jurisdiction; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 7053412
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10660134. Public record. Not legal advice.