Petition for Writ of Certiorari — Gregory D. Kilpatrick, Petitioner v. Harika Kondaveeti

S.D.N.Y. N.Y.C.

17-cv-5 113

McMahon, C.J.

-

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thug

Marshall United States Courthouse, 40 Foley Square,

in the City of New YorI, on the 21S day of May, two thousand eighteen.

Present:

Rosemary Pooler,

Richard C. Wesley,

Denny Chi,

Circuit Judges.

.

Gregory D. Kilpatrick,

PlaintiffAppellant,

V.

M.D. Harika Kondaveeti,

17-4021

Defendant-Appellee.

Appellant, pro se, moves foin forma pauperis status, appointment of counsel, and reconsideration

However, this Court has det'rmined sua sponte that the notice of appeal was untimely filed. Upon

due consideration, ii is her4y ORDERED that the appeal is DISMISSED fr lack of jurisdiction.

See Fed. R. App. P. 4(a)(l);?owles v. Russell, 551 U.S. 205,214 (2007). It is further ORDERED

that Appellant's motions are DENIED as moot.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

COLLEEN McMAHON, Chief United States District Judge

Plaintiff Gregory D Kilpatrick, a Bronx resident appearing pro se, brings this action

under the Court's federalq stion jurisdiction, alleging that Defendant Harika Kondaveeti, a

dentist in the Bronx, iefuse to provide him with prescriptions and a hypodermic needle to treat

an infection injected into h mouth by two female, Caucasion dentists By order dated July 24,

2017, the Court granted Pla ntiff's request to proceed without prepayment of fees, that is, in

101 ma pauper is.

STANDARD OF REVIEW

The Court must dis ss an infoimapauperis complaint, or portion thereof,that is

frivolous. w malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief., 28 U.S.C. § 1915(e)(2)(B), see

Livingston v Adirondack Boverage Co, 141 F 3d 434, 437 (2d Cir 1998) The Court must also

dismiss a complaint when th Court lacks subject-matter jurisdiction See Fed R Civ. P

12(h)(3) While the law m dates dismissal on any of these grounds, the Court is obliged to

construe prose pleadings Ii-1-.,rally,. Harris v Mills, 572 F 3d 66, 72 (2d Cir 2009), and InterpIet

them to raise the "strongest [claimsi that they suggest," Triestman v Fed Bureau of Prisons, 470

/

Case 1 17-cv-05113-CM Document 4 Filed 07/31/17 Page 2 of 8

/

F.3d 471,474 (2d Cir. 2006)(interñal quotation marks and citations omitted, emphasis in

original)

BACKGROUND

Plaintiff uses the Codt's general complaint form, invokes the Court's federal-question

jurisdiction, and alleges the fillowing: On an unspecified date between November 17, 2015, and

: October 4, 2016, at the StevJson Family Health Center (SFHC), "Plaintiff submitted urine,*

blood for the viral infection (ion Hepatitis C) germs, and contamination injected into [his] mouth

from the two female (Cauas on) dentists" (Compl at5 ) Plaintiff contends that Defendant, also

at the SFHC, "iefused to give [him] the prescriptions foi 'known liquid vial medicine' and

disposable hypodermic need syiinges to rid this 'temporary-peimanent' virus all togethei"

(id.), and asserts that "racism shouldnot play a role in depriving Plaintiff the needed medicine -to

cure a blood viral infection' id at 6) According to Plaintiff, however, Defendant 'did write

[him] a prescription for napu. xen sodium [a nonsteroidal anti-inflammatory drug]

it difficult for [him] to walk[j non-pain killer? [sic]. ." (Id

that made

at 5.)

Plaintiff identifies De endant as a "federal defendant (former employers)" (id at 2), and

refe rs to 28 U.S.C. §.1391(e)he. subsection of the venue statute that spe cifically addresses' •

defendants who are federal eriployees Plaintiff also identifies Defendant as a medical doctoi

employed at SFHC, a community health center. (Id at 4)

Plaintiff asserts that F1 injuries consist of "negligence" and seeks "the maximum

:-:amount of negligence .thoneyJãmages."(Id)He (Id. at 6.)

The Court takes judicial notice, see Fed R Evid 201, that the SFHC is part of the

Institute For Family Health•-a federally qualified community health center. The Institute For.

Family Health, http //www ii ititute oig/about-us/leadership/

2

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Case 1 17-cv-05113-CM Document 4 Filed 07/31/17 Page 3 of 8

DISCUSSION

A

42USC §198liid1983

Because Plamtiff im okes the Court's federal-question jurisdiction and suggests that

Defendant's conduct was bsed on racial animus, the Court construes the complaint as asserting

claims under 42 U.S.0 § 1981 and 1983

Fiist, 42 U.S.C. § lc1(a) provides that,

All persons within tl jurisdiction of the United States shall have the same right in every

State and Territory ti make and enforce contracts, to sue, be parties, give evidence, and

to the full and equal renefit of all laws arid pioceedings for the security of persons and

property as is .enjoyed by white citizens, and shall be subject to like punishment, pains,

penalties, taxes, licei ses, and exactions of every kind, and no other.

To state a claim under § 19

i, a plaintiff must allege that "(1) the plaintiff is a member of a

racial minority; (2) an intent to discriminate on the basis of race by the defendant, and (3) the

discrimination concerned o or more of the activities enumerated in the statute

"

Mian v

Donaldson LuJkin & Jenret e Sec Corp, 1 F 3d 1085, 1087 (2d Cir. 1993) (per curiarn) "[T]he

Second Circuit has broadly t.onstru.ed § 1981 s equal benefit clause as applying to 'racially:

motivated torts that deprive t plaintiff of the equal plotection of laws or proceedings for the

security of persons andproprty.'' Jones v. JC. Penney's .Dep't Stores, Inc., No. 03-CV-920

(RJA), 2007 WL 1577758, n *18 (W D N Y May 31, 2007) (quoting Phillip v Univ of

Rochestei, 316 F 3d 291, 29 '-98 (24 Cir. 2003))

Plaintiff has not satisfied the second or third elements of a § 1981 claim He has not

alleged facts, as opposed to Lgal conclusions, showing that Defendant discriminated against him

on the basis of race He has also. not alleged that he was engaged in any of the activities

enumerated in the statute P1 intiff has therefore failed to state a claim for relief under

See 28 U S C § 1915(e)(2)(B)(ii)

3

§ 1981

Case 1:177cv-051I3-CM Document 4 Filed 07/31/17

Page 4 of 8

Second, 42 U.S.0 § 1983 allows an individual to bring suit against persons who, acting

under color, of state 1aw,4ave causèd'.hirn to be "depriv[ed] of any rights, privileges, or

"•'

immunities secured by the Constitution and laws of the. United States." 42 U.S.C. § 1983 West V.

Atkins 487 U.S. 42, 48 (988). To, •state,a claim for relief under § 1983, a plaintiff must allege

both that (1) a right secu ed by the Constitution or laws of the United States was violated, and

(2) the right was violatedby a person acting under the color of state law, or a "state actor ' West,

487 U.S. at 48 Accordirily, private parties are generally not held liable under § 1983 Sykes v

Bank of Ameiica, 723 F

399, 406 (2d Cir. 2013) (citing Bientwood Acad. v Tenn Secondary

Sch Athletic Ass a, 531 US 288, 295 (2001)), see also Ciambriello v Cnty. of Nassau, 292 F 3d

307, 323 (2d Cir. 2002) ('FT]he United States Constitution regulates only the Government, not

private. parties ")

A private person

n quality as a state actor under §1983 if the link between the state

action and the private person's action is so close that the private person's' action "may be fairly

treated as that of the State. itself" Tancredi v Metro Life Ins Co., 378 F 3d 220, 229 (2d Cir.

2004) (quoting Jackson v. Metro, Edison Co., 419 U.S. 345, 351 (1974)); see also Cranley v.

Nat I Life Ins Co of Vt.., '18 F 3d 105, 112 (2d Cir. 2003) (noting that a "private actor [who]

opelates as a willful part ipant in

joint

activity with the State or its agents" may be considered a

state actor) (citation omit d), Dahl berg v Becker, 748 F 2d 85, 93 (2d Cir. 1984) (to constitute

joint participation in satis action of the state action requirement under '§ 1983, there must be a

"meeting of the minds or i ntent to conspire" between a private defendant and a state actor)

Plaintiff's § 1983 -,.-,,laims fail because he provides no facts showing that Defendant is a

• '

"State actor." See West, 47U.S. at 48. Although Plaintiff refers to Defendant as a former federal

employee, he states that w hen Defendant provided him with tieatment, she was employed by

4.

•

Case 1 17-cv-05113-CM Document 4 Filed

SFHC a private entity..

therefore. does not allege that Defendant was a

otherwise "operate[d] aswillful participant in

Cranley, 318 F.3d at .112.

07/31/17 Page 5 of 8

government agent or

joint activity, with the. State or its agents."

See

rlaintiff also fails to allege that Defendant conspired with any state

actors in performing acts set forth in the comp

laint

. See Dahlberg, 748 F.2d at 93. For these.

ieasons, Plaintiff's § 1983 c1airns are dism

issed

for failure to state a claim on which relief can

be

granted 28 U S C § 1915()(2)(B)(ii)

B

Subject-Matter Jurisdiction

The subject-matter Jurisdiction of the federal

district courts is limited and is set forth

generally in 28 U S C §§ 1331 and 1332 Und

er these, statutes, federal jurisdiction is available

only when a "federal questn" is presented or,

as to state-law claims, when the plaintiff and

defendants aie diverse and 1he amount in cont

roversy exceeds the sum or value of $75,000

is common ground that in &ir federal system

"

the question of whether the court has subject

United Food & Commercial Workers Union

CenterMark Prop. Meriden i3quare, Inc.',' 30

Constr.• Co., Inc. v. Hous...ALh.. oj the City

"[I]t

of limited jurisdiction any party or the court sua

sponte, at any stage of the riroceedings, may raise

:matter jurisdiction

the

Local 919 AFL-CIO v

F.3d 2.98,..3 01 (2d Cir. 1994) (quoting Manway

of Hartford, 71.1 F2d 501, 503 (2d Cir.1983));see

.

Fed R Civ. P 12(h)(3) ("If the court determine

s at any time that it lacks subject-matter

jurisdiction the court must ismiss the action.");

Ruhrgas AG v Marathon Oil Co, 526 U S

574 ) 583 (1999) ("[S]ubject-.matter delineatio

ns must be policed by the courts on their own

initiative

")

Plaintiffs §§ 1981 ad 1983 claims fail, but

in an abundance of caution, the Court

construes the balance of the omplaint as attem

pting to invoke the Court's diversity jurisdicti

to assert state-law claims To establish diversity

W.

jurisdiction under 28 U.S.C.

5

.

§ 1332 to assert

on

f

Case 1:17-c 05113-CM Document 4 Filed 07/31/17 Page 6 of 8

2/

state-law claims, a plaint must fist allege that he and the defendants are citizens of different

states See § 1332(a)(1),

ViS

Dep t of Corr v Schacht, 524 U.S. 381, 388 (1998) ("A case falls

within the federal districtcoui-t's .'original' divers ity 'jurisdiction' only if diversity of citizenship

among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens

of the same State.").. In addition, a plaintiff must allege to a "reasonable probability" that his

claims are in excess of tlu sum or value of $75,000, the statutory jurisdictional amount See 28

U.S.C. § 1332(a), Colavito v NY Organ Donor Nett'oik Inc., 438 F 3d 214, 221 (2d Cu

2006). The sum clairne y the lai•ntiff will control if it is made in good faith. St. Paul Mercury

Indein Co v Red Cab Co. , 303 U.S. 283, 288 (1938) It is the Court's duty, however, to dismiss

an action where it is "cor nced to a legal certainty that the plaintiff cannot recover an amount in

excess of the [minimum '1;tutory jurisdictional amount. ]` Tongkook Am Inc v Shzpton

Sportswear Co, 14 F.3d 1, 784 (2d Cir. 1994) (4uoting Deutsch v. Hewes St. Really 2orp.,

359 F 2d 96, 98 (2d Cir. 166)) (alteration in original, internal quotation marks omitted) The

Second Circuit has cautioned that a party should be afforded an "appropriate and reasonable

opportunity to show good faith in believing that a recovery in excess of [the jurisdictional

.

amount] is reasonably posible." Chase Manhattan Ban/c, N.A. .v. Am. Nat '1 Bank and Trust Co.

of Chicago, 93 F 3d 1064, 1070 (2d Cii 1996) (quoting A FA Tours Inc v Whztchurch, 937

F 3d 82, 88 (2d Cii 1991)' (alteration in original, internal quotation marks omitted)

Both Plaintiff and. De'fndarit appear to be citizens of the State of New York, thereby

precluding diversity of ci 'enship On this basis alone, the Court lacks diversity jurisdiction over

any state-law claims that Taintiff may intend to assert See Schacht, 524 U.S. at 388 Because

Plaintiff's complaint fails o state a claim over which this Court has subject-matter jurisdiction,

6

Case 1 17-cv-05113-CM Document 4 Filed 07/31/17 Page 7 of 8

: the Court dismisses Plaintiif's claims under §§ 1981 and 1983, with prejudice, for failure to state

a claim for relief, and disnlisses all potential state-law claims, without prejudice

2

District courts genirally grant a pro se plaintiff an opportunity 10 amend a complaint to

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

657.F3d 116, 123- 24 2dCir. 201.1)Salahuddin v. Cuqnio, 861 F.2d 40,42 (2d Cir. 1988):

• Because th e defects in Plaintiff's complaint cannot be cured with an amendment, the Court

declines to grant Plaintiff cave to amend his complaint

C

Litigation History

Plaintiff has filed .rurnerous..other cases in this Court. See Kilpatrickv. US. Dep'to,f

Veterans Affaii s, No 06-.'_N-9907 KMW) (S D N Y Mai 26, 2007) (dismissed on immunity

'

grounds and for failure to state a claim), appeal dismissed, No 07-2040 (2d Cir. Nov 1, 2007),

Kilpatrick v. Kamkar,Nc. 17-CV-5013 (UA) (S.D.N.Y) (filed June 27, 2017; alleges that the

defendant, a dentist stabi d him with a "steel chrome hypodermic needle" and infected him with

herpes and H1V)3; Kilpati cikv Volterra,-No. 17-CV-5109 (UA) (S.D.N.Y.) (filed July 6,2017;

alleging that the defenda a New York doctor, failed to prescribe proper medications),

Kilpati ick v Robinson, N 17-CV-5110 (UA) (S D N Y) (filed July 6, 2017; alleging that the

defendant, a New York d ctor, illegally withdrew Plaintiff's blood), Kilpatrick v Hen/an, No

1.7-CV-51 11 (CM) (S.D..Y.) (filed July 6,.2017.; alleging that defendant, a New York dentist,

assaulted him with a hypodermic needle), Kilpatrick v Weiss, No 17-CV-5 112 (UA) (S D N Y)

(filed July 6, 2017; allegi'g that the dèfehdant, a New. York doctor, failed to prescribe proper

2

Plaintiff is free t- bring, any state-law claims that he may wish to assert in the

s Court offeis no opinion as to the merit of any such claims

appropriate state court

Plaintiff attach to the complaint in that action. a newspaper article stating that he was

arrested for sending ahy1 oderr ic needle to a federal agent, which allegedly injured the agent.

•

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S

7.

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Case 1:177cv-0bL13-CM Document 5. FUed 07/31/17 Page 1 of 1

UNITED STATES DISTRICT, COURT. . •

SOUTHERN DISTRICT OF NEW YORK

GREGORY D. KILPATRIC,

.

.

Plaintiff,.

'.

. 17-CV-5113 (CM)

-against-

.

.

CIVIL JUDGMENT

M.D. HARIKA KONDAVE1TI,

.

Defendant.

•.

Pursuant to the order isued July 31, 2017, dismissing the complaint,

IT IS ORDERED, A1)JDGED AND DECREED that the complaint is dismissed under

28 U.S.C. § 1915(e)(2)(13)(11)

The Court certifies uner 28 U.S.0 § 1915(a)(3)that any appeal from the Court's

judgment would not be taken .i good faith.

.

.

IT IS FURTHER OR] ERED that the Clerk of Court mail a copy of this judgment to

Plaintiff and note service on the docket.

.

.

SO ORDERED

Dated:

July 31, 2017

New York, New York

.

COLLEEN McMAHON

Chief United States District Judge