Opinion
5:24-cv-0040 (GTS/TWD)
02-20-2024
KHALID MILLER, Plaintiff, v. CATHOLIC CHARITIES et al, Defendants.
KHALID MILLER PLAINTIFF, PRO SE
KHALID MILLER PLAINTIFF, PRO SE
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Khalid Miller (“Plaintiff”) alleging Catholic Charities, Jane Doe, and John Doe caused him pain, suffering, and mental anguish. Dkt. No. 1. Plaintiff, who is currently confined at the Onondaga County Justice Center, has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). Dkt. Nos. 4, 5.
II. IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)); see also 28 U.S.C. § 1915A(c) (“As used in this section, the term ‘prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”).
Upon review, Plaintiff's IFP application demonstrates economic need. Dkt. No. 4. 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. 5, he is granted permission to proceed IFP.
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.
III. BACKGROUND
Plaintiff alleges, on an unspecified date, he became reacquainted with Justin Cooper, but was concerned by Cooper's behavior. Dkt. No. 1 at 2. Months later, while Plaintiff and Cooper were at the Rescue Mission, Cooper informed Plaintiff he had just moved to an apartment, located at “1st North St.” Id. at 3. Plaintiff and Cooper traveled to the apartment, but the lights had not been turned on. Id. When the pair returned approximately four days later, the lights were on. Id.
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.
Over an unspecified time period, Plaintiff “would stay there for weeks at a time.” Id. However, Plaintiff removed himself from the apartment on multiple occasions “because of Justin's behavior . . . .” Id. Plaintiff avers Cooper “would get locked up and be out in days and would lose his keys.” Id. Plaintiff would periodically visit Cooper and “there would be all type of People over there, Disrespecting His place, It would be in disarray, So I would have to kick them out knowing they meant Justin no good.” Id.
In February of 2023, “Justin Really was out of control . . . .” Id. However, “throughout all of these events not one time had his case worker came to see how He was doing.” Id. at 3-4. After not having seen Cooper for two months, Plaintiff went to the apartment on Easter to invite Cooper to church but discovered Cooper “had been arrested and His place was unlocked and unoccupied and in disarray.” Id. at 4.
After church, Plaintiff returned to the apartment and “cleaned up the place went grocery shopping and bought a TV some other furniture Lamps, Bed Frame, dresser, Coffee Table, end Tables, Rolling Tray cart for serving, Coat Rack Second Hand Keyboard Stand for the keyboard, Air Fryer, Etc. Cleaning Supplies and kept up with His court dates in contemplation that He would be home soon.” Id. Cooper remained incarcerated throughout a subsequent, also unspecified, time period, “But in between that time his worker came twice.” Id. On the first occasion, Plaintiff states “she was totally unprofessional and just plain Rude, even after I told her who I was.” Id.
Plaintiff left the apartment on his own accord, but returned after one week. Id. Plaintiff did not see the case worker from the time he returned to the apartment “until some time In July shortly after the 4th, When she came with a crew of maintenance workers. A white guy and an African American Guy who came up stairs.” Id. Plaintiff avers the case worker told him, “because Justin wasn't coming . . . ” but the document appears to be missing at least one page. See id.
Plaintiff identified “Catholic Charities” as the defendant in his caption and listed Jane Doe, “Case Worker for Justin Cooper” and John Doe, “Assisting Maintenance Worker who Accompanied Justin Cooper's Worker” as defendants. Id. at 1-2. His complaint lists three causes of action:
• Compensation for Pain and Suffering my eyes are not the same, I see refracted light (like seeing stars periodically everyday, Allday) and slight headaches, and a bruised I socket of the eye
• Compensation for Mental Anguish Replacement of my Keyboard
• Parties Involved to be reprimanded for not being professional, (Fired) and not Holding to the standards of Catholic Charities Mission StatementId. at 5. Plaintiff requests “3 million dollars for Pain & Suffering mental anguish and lifetime Living arrangements paid for by Catholic Charites.” Id. at 6.
IV. LEGAL STANDARD
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2); § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil Procedure. To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). 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).
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.”).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citations omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
IV. ANALYSIS
Federal courts exercise limited jurisdiction pursuant to Article III of the Constitution. A court may exert subject matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States” and civil actions where there is diversity of citizenship between the parties and the amount in controversy exceeds the sum of $75,000. 28 U.S.C. §§ 1331, 1332. In the absence of a basis for exercising jurisdiction, the case must be dismissed. Fed.R.Civ.P. 12(h)(3); United States v. Cotton, 535 U.S. 625, 630 (2002); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006) (“A claim invoking federal-question jurisdiction under 28 U.S.C. § 1331 . . . may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made solely for the purpose of obtaining jurisdiction' or is ‘wholly insubstantial and frivolous.'”) (citing Bell v. Hood, 327 U.S. 678, 682-83 (1946)) (additional citations omitted). “[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte.” Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000).
Here, even afforded a liberal construction, Plaintiff's complaint has failed to allege a federal claim such that the Court's federal question subject matter jurisdiction under 28 U.S.C. § 1331 may be invoked. See generally, Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (the plaintiff bears the burden of establishing subject matter jurisdiction).
It appears Plaintiff seeks to invoke federal question subject matter jurisdiction given that he utilized a form civil rights compliant pursuant to 42 U.S.C. § 1983. See Dkt. No. 1 at 1. However, “[t]o state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)); see also Bennett v. Bailey, No. 5:20-CV-0903 (GTS/ATB), 2020 WL 5775940, at *2 (N.D.N.Y. Aug. 17, 2020) (“The requirement that the defendant acted under ‘color of state law' is jurisdictional.”) (citation omitted), report and recommendation adopted, 2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)) (additional citation omitted).
In this case, Plaintiff has not alleged Catholic Charities, the Jane Doe caseworker, or the John Doe maintenance worker acted under the color of state law; therefore, they cannot be sued under § 1983. See Basile v. Connolly, 538 Fed.Appx. 5, 7 (2d Cir. 2013) (Summary Order) (“private individuals who cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation that they acted under color of state law.”). Nor has Plaintiff identified any violation of a right guaranteed by federal law or the U.S. Constitution such that his right to relief requires resolution of a substantial question of federal law. Dobbs v. SEFCU, No. 1:22-CV-1228 (LEK/TWD), 2022 WL 17617752, at *2 (N.D.N.Y. Dec. 13, 2022) (“Federal question jurisdiction exists where the complaint ‘establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on a resolution of a substantial question of federal law.'”) (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)), report and recommendation adopted, 2023 WL 1431633 (N.D.N.Y. Feb. 1, 2023).
Moreover, there is nothing in Plaintiff's complaint which would indicate the Court may exercise diversity jurisdiction pursuant to 28 U.S.C. § 1332. While Plaintiff's requested three million dollars in damages is greater than the amount in controversy requirement, see Dkt. No. 1 at 6; 28 U.S.C. § 1332(a), his complaint is completely devoid of information concerning the Defendants' domicile; therefore, Plaintiff has failed to invoke diversity jurisdiction. See generally, Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992) (“28 U.S.C. § 1332 requires complete diversity between all plaintiffs and all defendants . . . .”); see also, e.g., Rashid v. Sufyan, No. 1:16-CV-1094 (FJS/DJS), 2016 WL 7077082, at *3 (N.D.N.Y. Nov. 4, 2016) (“For diversity jurisdiction purposes, an individual's citizenship is the individual's domicile, which is determined on the basis of two elements: (1) physical presence in a state and (2) the intent to make the state a home.”) (internal quotations and citations omitted), report and recommendation adopted, 2016 WL 7053412 (N.D.N.Y. Dec. 5, 2016). Accordingly, the Court recommends dismissal of Plaintiff's complaint for lack of subject matter jurisdiction.
As previously stated, before dismissing a pro se complaint or any part of the complaint sua sponte, the Court should generally afford the plaintiff an opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Because the Court lacks subject matter jurisdiction, the Court must recommend dismissing the action without prejudice. Hollander v. Garrett, 710 Fed.Appx. 35, 36 (2d Cir. 2018) (Summary Order); see also Humphrey v. Syracuse Police Dep't, 758 Fed.Appx. 205, 206-07 (2d Cir. 2019) (Summary Order) (explaining, where a court dismisses a complaint for lack of subject matter jurisdiction, the court does “not have the power to reach the merits and dismiss the claims against the defendants for failure to state a claim, or to eventually dismiss the complaint with prejudice for failure to file a proposed amended complaint.”) (citing Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 54-55 (2d Cir. 2016)). Therefore, the Court recommends granting Plaintiff leave to amend.
The Court advises Plaintiff that should he be permitted to amend his complaint, any amended pleading he submits to this Court must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint should specifically identify the legal theory or theories that form the basis for his claim. Plaintiff is cautioned that no portion of his prior complaint shall be incorporated into his amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth all of the claims he intends to assert against the Defendants and must demonstrate that a case or controversy exists between the Plaintiff and the Defendants which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. If Plaintiff is alleging the Defendants violated a law, he should specifically refer to such law. Of course, Plaintiff may also pursue his claims in state court if appropriate.
V. CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 4) is GRANTED, and it is
RECOMMENDED that Plaintiffs claims be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. 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.
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). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.