Opinion
21-CV-3723 (GBD)(SN)
10-25-2021
ROSEMARY SCOTT SUMTER, Plaintiff, v. JESSICA KEITH, et al., Defendants.
TO THE HONORABLE GEORGE B. DANIELS, JUDGE.
REPORT & RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
Plaintiff Rosemary Scott Sumter brings this civil rights action, under 42 U.S.C. § 1983, on behalf of six alleged tribal officials of the Saw Creek and Pine Ridge Indian Communities against Craig Lowe, the Warden of the Pike County Correctional Facility, Jessica Keith, of the Norristown State Hospital, and Raymond Tonkin, the District Attorney of Pike County, Pennsylvania. Because of fatal deficiencies in standing and venue, I recommend that the Complaint be dismissed.
BACKGROUND
I. Facts
Plaintiff asserts that she is a tribal council member of the Saw Creek and Pine Ridge Indian Communities' tribal government. ECF No. 1 ("Compl.") at 2, 9. On November 18, 2019, six individuals, who claimed to be tribal officials of the Saw Creek and Pine Ridge Indian Communities, were arrested by troopers of the Pennsylvania State Police in Pike County. Compl. at 12. The six individuals are Keeba Scott Harris, Adam Abdur-Rahim, Musa Abdur-Rahim, Sushane Adams Heylinger, Troy Anthony Sutton, and Sekon Rashid Abdullah. Compl. at 9. Plaintiff alleges that Pike County, without authorization from the tribal government, has been imposing property taxes on dwellers from the Saw Creek and Pine Ridge Indian Communities, and that the six alleged tribal officials were arrested while demanding this conduct end. Compl. at 11-12. They were charged with state offenses, such as trespassing and terrorism, and were transported to the Pike County Correctional Facility where they were placed under the custody of Defendant Lowe. Compl. at 12, 14. Plaintiff Rosemary Scott Sumter is not alleged to have been arrested.
The page numbers being used are those in the blue heading at the top of each page in the Complaint.
Plaintiff claims that human rights and constitutional violations were committed against the six tribal officials while in the custody of Defendant Lowe. Compl. at 15-28. Plaintiff also asserts that the evidence being used against them was intentionally and maliciously suppressed and fabricated by Defendant Tonkin. Compl. at 30-35. Lastly, Plaintiff alleges that Defendant Keith involuntarily committed tribal official Harris into a mental hospital, tantamount to Harris's false imprisonment. Compl. at 39-50.
II. Procedural History
Plaintiff filed this action on April 27, 2021. On May 28, 2021, the Court issued an Order to Show Cause as to why this case should not be dismissed, either because the Plaintiff could not bring claims on behalf of others or an organization, or because the case should have been filed in the Middle District of Pennsylvania. ECF No. 10. In response to the Order, Plaintiff argued that this case should not be dismissed because she resides in this district and, unlike the Middle District of Pennsylvania, this Court "has more experience and a knowledgeable reputation in American Indian [l]aw" and would provide a "fair hearing." ECF No. 14-1-14-2. Defendant Lowe and Tonkin jointly responded to the Order, arguing that this case be dismissed due to Plaintiffs lack of standing and on personal jurisdiction grounds. ECF No. 13 at 1-3. Defendant Keith separately responded by arguing that this case be dismissed due to Plaintiffs lack of standing and improper venue. ECF No. 19 at 1-2.
On June 28, Plaintiff filed a "Petition for Discovery," including multiple interrogatories as well as a restatement of Plaintiff s claims. ECF No. 22. Subsequently, Plaintiff requested this case be consolidated with a pending case in the United States Court of Appeals for the Second Circuit. ECF No. 21. The pending case involves a 28 U.S.C. § 1407 action that was filed by Tonia Scott, an alleged tribal council member who was also involved in the events pertinent to this case. ECF No. 21 at 1-2. On August 26, 2021, Plaintiff moved to amend the complaint and her prior requests for discovery. ECF Nos. 28 & 29.
DISCUSSION
In general, "[a] document filed pro se is 'to be liberally construed.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation omitted); see also McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156-57 (2d Cir. 2017) ("The policy of liberally construing pro se submissions is driven by the understanding that implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." (quoting Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007))); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) ("It is well established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006))).
I. Standing
Plaintiff asserts that, despite being listed as the plaintiff on the Complaint, she is only a contact, and the actual plaintiff is the Saw Creek and Pine Ridge Communities tribal council. ECF No. 8. Defendants Lowe and Tonkin argue that this case be dismissed due to Plaintiffs lack of standing because Plaintiff "cannot pursue claims ... on behalf of people who were arrested and who are not parties." ECF No. 13 at 2. Defendant Keith makes the same argument. ECF No. 19 at 2 ("As a non-lawyer Plaintiff may not bring claims on behalf of these other six individuals."). Defendants also challenge Plaintiffs ability to represent the Saw Creek and Pine Ridge Communities because she is not a licensed attorney. Defendants Lowe and Tonkin note that "Saw Creek and Pine Ridge Indian Communities LLC" is registered with the Pennsylvania Corporation Bureau, and Plaintiff may not represent a corporation. ECF No. 13 at 1-2. Relatedly, Defendant Keith asserts that "Plaintiff may not bring claims pro-se on behalf of a distinct governmental legal entity." Id.
Under Article III of the United States Constitution, "courts require that plaintiffs establish their 'standing' as the 'proper part[ies] to bring' suit." W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). "If [a] plaintiff does not have standing, the court does not have the power to decide her claims." Wells Fargo Bank, NA. v. Ullah, No. 13-cv-0485 (JPO), 2014 WL 470883, at *5 (S.D.N.Y.Feb. 6, 2014). The plaintiff bears the burden of establishing standing. See Cunney v. Bd. of Trs. of Vill. of Grand View, 56 F.Supp.3d 470, 490 (S.D.N.Y.2014). To establish standing: (1) "the plaintiff must have suffered an injury in fact," (2) "the injury must be 'fairly traceable' to the defendant's actions that the plaintiff challenges," and (3) "it must be likely that a decision in the plaintiffs favor would redress her injury." Wells Fargo Bank, N. A., 2014 WL 470883, at *5 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).
"[W]hether a plaintiff has standing to assert a claim in federal court depends on 'the nature and source of the claim asserted.'" E.M. v. N.Y.C. Dep't. of Educ, 758 F.3d 442, 450 (2d Cir. 2014). The plaintiff "must assert [her] own legal rights and interest, and cannot rest [her] claim to relief on the legal rights or interests of third parties." Caractorv. City of N.Y. Dep't. of Homeless Servs., No. ll-cv-2990 (DLC), 2013 WL 2922436, at *3 (S.D.N.Y. June 14, 2013) (quoting Warm v. Seldin, 422 U.S. 490, 499 (1975)). A plaintiff may only assert the legal rights of a third party when "(1) [she] has a 'close relationship with the person who possesses the right' and (2) 'there is hinderance to the possessor's ability to protect his own interests.'" Id. (quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)).
Plaintiff does not satisfy the first prong of the test because she personally did not suffer an injury. Instead, Plaintiff filed this action for injuries suffered by the six alleged tribal officials while incarcerated. Because these individuals are third parties, Plaintiff cannot seek relief for their legal rights or interests. See Swift v. Tweddell, 582 F.Supp.2d 437, 449 (W.D.N.Y.2008) (incarcerated plaintiff lacked standing to bring § 1983 action on behalf of inmates who could not afford to purchase writing materials for use in the law library, where he conceded he had money to buy them) (citing Bass v. Singletary, 143 F.3d 1442, 1446 (11th Cir. 1998) ("Plaintiffs do not have standing to assert other inmates' claims for denial of their rights of access to the courts")); see also Warren v. Westchester Cnty. Jail, 106 F.Supp.2d 559, 571 (S.D.N.Y.2000) (dismissing for lack of standing § 1983 claim brought on behalf of plaintiff s wife who claimed mental distress due to encounter with a corrections officer during visitation). Further, even if Plaintiff had a close relationship with these individuals because they are all members of the same tribe, there appears to be nothing to hinder the six individuals from filing their own actions to protect their interests. In fact, one of those individuals-Keeba Scott Harris-currently has a habeas petition pending in the Middle District of Pennsylvania. ECF No. 14-2. See, e.g., Jackson v. Thornburgh, 907 F.2d 194, 199-200 (D.C. Cir. 1990) (holding that incarcerated women could not assert the equal protection rights of incarcerated men where the men had in fact challenged the constitutionality of the law in question).
Lastly, Plaintiff may not represent the tribal council as a corporate entity because she is not a licensed attorney. ECF No. 13 at 2. See Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) (holding that a corporation cannot proceed pro se and must be represented by an attorney licensed to practice law). Accordingly, I recommend that this case be dismissed because of Plaintiff s lack of standing.
II. Venue
In the alternative, the Court could dismiss this case for improper venue. While Plaintiff resides in this judicial district, all defendants reside in Pennsylvania, which is also where the underlying events occurred.
Plaintiff asserts that venue is proper in this district under 28 U.S.C. § 1397, which governs interpleader complaints, or 28 U.S.C. § 1391, which states in relevant part that venue is proper in "a judicial district in which any defendant resides, if all defendants are residents of the state," or where "a substantial part of the events" occurred. ECF No. 14-1-14-2. Further, Plaintiff requests that the Court find that this district is the proper venue because of its expertise and familiarity with American Indian Law and because Plaintiff believes a fair trial would not be possible in the Middle District of Pennsylvania, where the underlying criminal case is "high profile" and has received a lot of publicity. Id
This district is not the appropriate venue because none of the Defendants resides in New York. 28 U.S.C. § 1391(b)(1). Contrary to Plaintiffs argument that venue is proper because she lives in New York, the residence of the plaintiff is irrelevant to the venue analysis. 14D Charles Alan Wright & Arthur M. Miller, Fed. Prac. & Proc. § 3805 (4th ed. 2021); see also Okereke v. Allen, No. 14-cv-3368 (LAK)(JCF), 2015 WL 5508888, at *2 (S.D.N.Y. July 29, 2015). Venue may also be proper when "a substantial part of the events or omissions giving rise to the claim occurred" in the district. 28 U.S.C. § 1391(b)(2); see also Daniel v. Am. Bd. of Emergency Med, , 428 F.3d 408, 432 (2d Cir. 2005). But venue is improper here because all events described in the Complaint occurred in Pennsylvania. See Pablo Star Ltd. v. Welsh Gov't, 170 F.Supp.3d 597, 609 (S.D.N.Y. 2016) (dismissing claims for improper venue where plaintiffs did not allege that "any of the specific conduct at issue occurred in this district"). Accordingly, this case is properly brought in the Middle District of Pennsylvania.
Finally, because there is a district where this case could be bought, Plaintiff cannot avail herself of § 1391(b)(3). But, even if Plaintiff could establish that "there is no district in which an action may otherwise be brought," Plaintiff cannot establish that "any defendant is subject to the court's personal jurisdiction." 28 U.S.C. § 1391(b)(3). Defendants Lowe and Tonkin assert that this District does not have personal jurisdiction over them because the claims raised against them occurred within the jurisdiction of the Middle District of Pennsylvania and they have not had any contacts with New York.
"The breadth of a federal court's personal jurisdiction is determined by the law of the state in which the district court is located." Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir. 2006). In New York, a plaintiff may demonstrate personal jurisdiction by showing either that the defendant was "'present' and 'doing business' within the meaning of New York Civil Procedure Law and Rules ("CPLR") § 301, or that the defendant committed acts within the scope of New York's long-arm statute, CPLR § 302." Schultz v. SafraNat'l Bank of NY., 377 Fed.Appx. 101, 102 (2nd Cir. 2010). Under CPLR § 302(a)(1)-(4), a court has personal jurisdiction over an out-of-state defendant when the defendant "transacts any business within the state or contracts anywhere to supply goods or services in the state;" or "commits a tortious act within the state;" or "commits a tortious act without the state causing injury to person or property within the state;" or "owns, uses, or possesses any real property situated within the state."
In this case, this district is not the proper venue because this Court does not have personal jurisdiction over Defendants Lowe, Tonkin, and Keith as required by § 1391(b)(3). Plaintiff did not demonstrate that Defendants Lowe, Tonkin, and Keith were "present" or "doing business" within New York or committed acts within the scope of New York's long-arm statute. See Olmeda v. Babbits, No. 07-cv-2140 (NRB), 2008 WL 282122, at *6 (S.D.N.Y. Jan. 25, 2008) (dismissing for lack of personal jurisdiction § 1983 claims related to arrest in North Carolina against law enforcement officers who were residents of that state). And, as discussed, Plaintiff has not established an injury in New York.
Accordingly, in the alternative, I recommend that this case be dismissed for improper venue.
CONCLUSION
Plaintiff has failed to demonstrate that she has standing to bring this action or that this judicial district is the proper venue. Accordingly, I recommend that this case be dismissed with prejudice (for lack of standing) or without prejudice (for improper venue). Because Plaintiff cannot cure these defects, and in fact her proposed amended complaint fails to do so (at ECF 28), leave to amend should be denied. The Clerk of Court is respectfully directed to mail a copy of this order to the pro se Plaintiff.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).