The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DARNEL POWELL,
Plaintiff,
v.
LISA MALDONADO, ANN MEMORANDUM AND ORDER
ALEXANDER, WESTBURY TEACHERS 23-CV-826 (RPK) (PK)
ASSOCIATION, NEW YORK STATE
DEPARTMENT OF EDUCATION,
WESTBURY UNION FREE SCHOOL
DISTRICT, and WESTBURY UNION
FREE SCHOOL FREE BOARD OF
TRUSTEES,
Defendants.
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RACHEL P. KOVNER, United States District Judge:
This is the fifth case that plaintiff Darnel Powell has brought alleging that he was
wrongfully terminated from his job as a middle school principal. See Powell v. Westbury Union
Free Sch. Dist., No. 12-CV-1179 (JS) (AKT); Powell v. N.Y. State Dep’t of Educ., No. 18-CV-
2638 (RPK) (PK); Powell v. N.Y. State Dep’t of Educ., No. 18-CV-7022 (RPK) (PK); Powell Bey
v. Westbury Union Free Sch. Dist., 21-CV-2048 (RPK) (PK). Plaintiff’s original complaint was
dismissed for lack of subject-matter jurisdiction, with leave to amend. See Mem. & Order (Dkt.
#93). Because plaintiff still fails to establish subject-matter jurisdiction, his amended complaint
is dismissed, without leave to amend.
BACKGROUND
The Court assumes the parties’ familiarity with the factual background of plaintiff’s claims,
as set out in the Court’s prior order. See Mem. & Order 2–4. The facts alleged in plaintiff’s
complaint and amended complaint are assumed true for the purpose of this decision.
Plaintiff, proceeding pro se, filed his original complaint in February 2023, bringing claims
of negligence and negligent hiring, supervision, and retention against Lisa Maldonado, Ann
Alexander, and the Westbury Union Free School District (collectively, the “District Defendants”),
the New York State Department of Education, and the Westbury Teachers Association. See
Compl. ¶¶ 3–8; 90–117 (Dkt. #1). The complaint also asserted “against plaintiff” a “sexual
battery” claim wherein he denies having “cause[d] harm and offensive bodily sexual contact upon
the person of defendants,” specifically Maldonado and Alexander. Id. ¶¶ 1, 86–89 (capitalization
altered); see Mem. & Order 3–4. The Court dismissed the complaint for lack of subject-matter
jurisdiction. See Mem. & Order 9. Specifically, the Court held that plaintiff failed to establish
federal-question jurisdiction because the complaint asserted only state-law claims and because
sovereign immunity, “statute-of-limitations[,] and res judicata principles would foreclose a claim
under [42 U.S.C. §] 1983.” Id. at 5–7. Plaintiff also failed to establish diversity jurisdiction
because he had not adequately pleaded that he was a “Citizen or Subject of a Foreign Country”
diverse from defendants who “are citizens of New York.” Id. at 7–8. Plaintiff was granted leave
to amend. Id. at 9.
Plaintiff’s amended complaint asserts substantially the same claims as the original
complaint, against the same defendants. See Am. Compl. ¶¶ N–SS (Dkt. #97). The amended
complaint, like the original complaint, invokes both federal-question and diversity jurisdiction. Id.
at 2. Plaintiff alleges that defendants are United States citizens and that he is a foreign citizen—
specifically, that he is “a Moorish American National,” was “born in the Moroccan
Empire/Northwest Amexem currently known as the Americas,” and “is not a citizen of the United
States and New York State[] but [is doing business as] DARNEL POWELL in the United States
and New York State political zone.” Id. at 2–3, 6–7, 10–11. Attached to the amended complaint
is a scan of plaintiff’s “Allodial American National Identification Card,” which lists plaintiff’s
domicile as “North America,” provides a “Mailing Location” in New York, and describes plaintiff
as “Moor American.” Id., Ex. D. Plaintiff also alleges, in asserting federal-question jurisdiction,
that defendants violated “the Treaty of Peace and Friendship 1787” as well as plaintiff’s Fifth
Amendment right to due process and Sixth Amendment right of confrontation. Id. at 2, 6–8.
Defendants move to dismiss the amended complaint for lack of subject-matter jurisdiction,
improper service, and failure to state a claim. See Mem. in Supp. of N.Y. State Educ. Dep’t’s Mot.
to Dismiss (“NYSED Mot. to Dismiss”) (Dkt. #98-1); Mem. in Supp. of Westbury Tchrs. Assoc.
Mot. to Dismiss (“WTA Mot. to Dismiss”) (Dkt. #41); Mem. in Supp. of District Defs.’ Mot. to
Dismiss (“District Defs.’ Mot. to Dismiss”) (Dkt. #100-7); Mar. 15, 2024 Order. Defendants
argue, inter alia, that plaintiff’s allegation of “Moorish” descent is insufficient to adequately plead
diversity jurisdiction, that the treaty plaintiff invokes does not sustain a federal claim, and that the
amended complaint fails to otherwise assert a federal claim for the same reasons explained in the
Court’s prior order dismissing the original complaint. NYSED Mot. to Dismiss 4–6; WTD Mot.
to Dismiss 4–5; District Defs.’ Mot. to Dismiss 3–7.
Plaintiff has submitted numerous filings opposing defendants’ motions. See, e.g., Resp. in
Opp’n (Dkt. #111); May 28, 2024 Resp. to Mot. (Dkt. #117); June 20, 2024 Resp. to Mot. (Dkt.
#124). Plaintiff has also submitted a document styled as a “Statement of Claim upon Relief,”
which lists plaintiff’s New York “mailing address” and asserts, for the first time, that plaintiff
“resides” in West Virginia. Pl.’s Statement of Claim ¶ 1.b. (Dkt. #112). That document is
formatted similarly to plaintiff’s complaint and amended complaint, and lists substantially the
same allegations and causes of action while reframing plaintiff’s sexual-battery claim to assert that
defendants “failed to protect plaintiff . . . from [Maldonado’s and Alexander’s] fabricated sexual
offense[]” allegations. Id. ¶¶ N–TT.
STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), a plaintiff
must show that the Court has “the statutory or constitutional power to adjudicate” the action.
Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 417 (2d Cir. 2015)
(citation omitted). “The plaintiff bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638
(2d Cir. 2005). In deciding a Rule 12(b)(1) motion, the court “must take all facts alleged in the
complaint as true.” Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting
Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000)). “But ‘where jurisdictional facts are placed in
dispute, the court has the power and obligation to decide issues of fact by reference to evidence
outside the pleadings, such as affidavits.’” Tandon v. Captain’s Cove Marina of Bridgeport, Inc.,
752 F.3d 239, 243 (2d Cir. 2014) (brackets omitted) (quoting APWU v. Potter, 343 F.3d 619, 627
(2d Cir. 2003)).
When a plaintiff is proceeding pro se, the complaint must be “liberally construed,
and . . . however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation
marks and citations omitted). Pro se status, however, does not “exempt a party from compliance
with relevant rules of procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 477 (2d Cir. 2006) (per curiam) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)).
DISCUSSION
A federal district court’s original subject-matter jurisdiction is limited to those claims that
present federal questions, see 28 U.S.C. § 1331, or involve parties of diverse citizenship and
damages that exceed $75,000, see 28 U.S.C. § 1332. See Barber v. U.S. Attorney’s Off. for N.
Dist., 166 F. App’x 504, 505 (2d Cir. 2006) (citing Da Silva v. Kinsho Int’l Corp., 229 F.3d 358,
363 (2d Cir. 2000)). Considering plaintiff’s various filings together, including his original
complaint and amended complaint, see, e.g., Mendoza v. Edge, 615 F. Supp. 3d 163, 166–67
(E.D.N.Y. 2022); Ferrera v. Fisher, No. 13-CV-3055 (PAE), 2014 WL 1303436, at *1 n.1
(S.D.N.Y. Apr. 1, 2014), plaintiff has not sufficiently alleged subject-matter jurisdiction under
either basis. Accordingly, his amended complaint is dismissed, without leave to amend.
I. Federal-Question Jurisdiction
Plaintiff’s amended complaint fails to establish federal-question jurisdiction.
Federal-question jurisdiction provides federal district courts with subject-matter
jurisdiction over suits “arising under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. Under the well-pleaded complaint rule, “federal-question jurisdiction generally
‘exists only when a federal question is presented on the face of the plaintiff’s properly pleaded
complaint.’” State by Tong v. Exxon Mobil Corp., 83 F.4th 122, 132 (2d Cir. 2023) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). A complaint’s facial assertion of a federal
claim still fails to establish jurisdiction, however, if that claim “clearly appears to be immaterial
and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly
insubstantial and frivolous.” Carlson v. Principal Fin. Grp., 320 F.3d 301, 306 (2d Cir. 2003)
(quoting Bell v. Hood, 327 U.S. 678, 682–83 (1946)).
The amended complaint fails to properly present a federal question. Plaintiff points to
three potential bases for federal-question jurisdiction: the Treaty of Peace and Friendship of 1787,
the Sixth Amendment, and the Fifth Amendment. See Am. Compl. 2, 7–8, ¶¶ 5–6; see also Resp.
in Opp’n 3–4, 7, 9; Pl.’s Statement of Claim 8–9, 12; May 28, 2024 Resp. to Mot. 2, 5, 9–10; June
20, 2024 Resp. to Mot. 1. But plaintiff fails to present a substantial, non-frivolous federal claim.
First, plaintiff’s “effort to enforce” the treaty, Am. Compl. ¶ 5, does not raise “a substantial
question of federal law” because, aside from a “passing reference” in the amended complaint,
plaintiff never explains the treaty’s relevance to his claims against defendants. Ataroua v. Tamir,
No. 22-CV-10371 (LTS), 2022 WL 17822720, at *3 (S.D.N.Y. Dec. 19, 2022). Second, the Sixth
Amendment’s “right of confrontation does not apply in . . . civil action[s],” Barclay v. New York,
602 F. App’x 7, 13 (2d Cir. 2015), including the civil Section 3020-a proceeding underlying
plaintiff’s claims, see Am. Compl. 7–8, ¶¶ H, L. Third, the “Fifth Amendment’s Due Process
Clause protects” plaintiff “against only federal government actors, not State officials” or entities
like defendants. Mitchell v. Home, 377 F. Supp. 2d 361, 372 (S.D.N.Y. 2005) (citing Dusenbery
v. United States, 534 U.S. 161, 167 (2002)).
Moreover, it would be improper to construe the amended complaint to assert a Fourteenth
Amendment due process claim under Section 1983. Plaintiff repeatedly disclaims any invocation
of the Fourteenth Amendment, which he believes “was never ratified” and “does not apply to
[him].” Am. Compl. 2–3, 9. And, as the Court has previously noted, prior cases have already held
that substantially similar Section 1983 claims against these defendants would be barred by
sovereign immunity and the statute of limitations. See Mem. & Order 6.
Because plaintiff’s remaining claims “arise[] under state law,” id. at 5–6, his amended
complaint fails to establish federal-question jurisdiction under Section 1331.
II. Diversity Jurisdiction
Plaintiff has also failed to establish diversity jurisdiction.
Federal district courts may exercise diversity jurisdiction over a claim where the amount-
in-controversy “exceeds the sum or value of $75,000,” and complete diversity of citizenship exists
between all plaintiffs and all defendants. See 28 U.S.C. § 1332; Lincoln Prop. Co. v. Roche, 546
U.S. 81, 89 (2005). The parties are considered diverse if the dispute is between “citizens of
different States,” 28 U.S.C. § 1332(a)(1), or between “citizens of a State and citizens or subjects
of a foreign state,” so long as the latter are not “lawfully admitted for permanent residence in the
United States and are domiciled in the same State,” id. at § 1332(a)(2). Diversity depends upon
each parties’ citizenship “at the time of the action brought.” Grupo Dataflux v. Atlas Glob. Grp.,
L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 22 U.S. (Wheat.) 537, 539 (1824)).
“A person is deemed a citizen of the state wherein he or she is domiciled, . . . and establishing
one’s domicile in a state generally requires both physical presence there and intent to stay.”
Universal Reinsurance Co., Ltd. v. St. Paul Fire & Marine Ins. Co., 224 F.3d 139, 141 (2d Cir.
2000).
Plaintiff fails to allege facts plausibly suggesting diversity of citizenship. The complaint
and amended complaint suggest that defendants are citizens of New York. See Compl. ¶¶ 3–8;
Am. Compl. 2, 6, 10; Mem. & Order 7. Plaintiff, in contrast, repeatedly disclaims United States
citizenship and alleges that he is “Moorish American National” doing business in the “United
States and New York State political zone.” Am. Compl. 2–3, 6–7, 10–11. Plaintiff’s “Allodial
American National Identification Card” mirrors this allegation by describing plaintiff as a “Moor
American” and listing plaintiff’s “Mailing Location” as being in New York. Id., Ex. D. As this
Court and others have repeatedly held, “plaintiff may not claim foreign citizenship simply because
he identifies as a Moorish American National.” Powell Bey v. Campanelli, No. 19-CV-5304
(RPK) (PK), 2020 WL 4451772, at *3 (E.D.N.Y. Aug. 3, 2020) (collecting cases).
Plaintiff has also failed to plausibly allege that he is a citizen of a state other than New
York. The amended complaint repeatedly suggests that plaintiff is domiciled in New York—the
same state as defendants’ apparent citizenship—by claiming plaintiff is “doing business” in New
York and listing plaintiff’s mailing address in New York. See Am. Compl. 10–11, Ex. D. To be
sure, plaintiff’s “Statement of Claim upon Relief” now alleges that plaintiff “resides” out of state—
in West Virginia—though it continues to provide plaintiff’s New York mailing address. Pl.’s
Statement of Claim ¶ 1.b. But plaintiff’s reference to West Virginia is still inadequate to plead
diversity of citizenship. Plaintiff alleges “only [his] residence, and not [his] citizenship []or
domicile,” Jacobs v. Pat. Enf’t Fund, Inc., 230 F.3d 565, 567 (2d Cir. 2000); see Taldone v.
Barbash, No. 14-CV-2147 (SJF) (AKT), 2014 WL 1800794, at *6 (E.D.N.Y. May 5, 2014), and
plaintiff’s filings—which have repeatedly suggested that he lives in New York—do not plausibly
allege that he was “a domiciliary or citizen of [West Virginia] at the time he commenced this
action” in February 2023, Davis v. Cannick, No. 14-CV-7571 (SJF) (SIL), 2015 WL 1954491, at
*3 (E.D.N.Y. Apr. 29, 2015); see, e.g., Jelen v. U.S. Marshals Serv., No. 18-CV-680 (WHP), 2020
WL 1503566, at *11–12 (S.D.N.Y. Mar. 30, 2020); Reyes v. Sprint Holdings, LLC, No. 17-CV-
624 (MKB), 2018 WL 3369672, at *4–5 (E.D.N.Y. July 9, 2018).
Because plaintiff fails to adequately plead diversity of citizenship, his amended complaint
is dismissed for lack of subject-matter jurisdiction.
III. Denial of Leave to Amend
Plaintiff is denied leave to amend his complaint a second time. A court generally should
grant leave to amend in the absence of “evidence of undue delay, bad faith or dilatory motive on
the part of the movant, undue prejudice to the opposing party, or futility.” Monahan v. N.Y.C.
Dep’t of Corr., 214 F.3d 275, 283 (2d Cir. 2000). “When a plaintiff was aware of the deficiencies
in his complaint when he first amended, he clearly has no right to a second amendment.” Nat’l
Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, 898 F.3d 243, 257–58 (2d Cir. 2018) (quotation
marks and citation omitted). The amended complaint is dismissed for substantially similar reasons
as plaintiff’s original complaint. And none of plaintiff’s filings, including his “Statement of Claim
upon Relief,” suggest a second amended complaint would garner a different result. Accordingly,
plaintiff is denied leave to further amend his amended complaint.
CONCLUSION
This case is dismissed without prejudice and without leave to amend for lack of subject-
matter jurisdiction. Accordingly, plaintiff’s motion for summary judgment, see Mot. for Summ.
J. (Dkt. #125), is denied, and all other pending motions are denied as moot. Although plaintiff
paid the filing fee to bring the action, 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 an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45
(1962). The Clerk of Court is respectfully directed to enter judgment and close this case.
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
Dated: January 2, 2025
Brooklyn, New York