Brown v. Smicle

Filing 7

RULING AND ORDER dismissing the complaint. Signed by Judge Christopher F. Droney on 1/26/10. (Johnson, D.)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ADRIAN ANDREW BRIAN BROWN v. BALBENA SMICLE : : : : :

Case No.

3:09cv2124(CFD)

RULING AND ORDER Plaintiff has filed a civil action against his mother, Balbena Smicle, pro se and in forma pauperis pursuant to 28 U.S.C. § 1915(a). will be dismissed. Under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii), the court may dismiss any portion of the complaint that "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or that "seeks monetary relief from a defendant who is immune from such relief." Id. For the reasons that follow, the complaint

In reviewing a pro se complaint, the court must assume the truth of the allegations, and interpret them liberally to "raise the strongest arguments [they] suggest[]." F.3d 636, 639 (2d Cir. 2007). Abbas v. Dixon, 480

Although detailed allegations are

not required, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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.

The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v.

Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). But "`[a] document filed

pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Boykin v.

KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Plaintiff alleges that since September 5, 2008, his mother has "sponsor[ed]" him "in the United States." mother rent to live in her house. mother about the living conditions. On June 23, 2009, plaintiff's sister stabbed him with a pair of scissors, plaintiff called the police and the police arrested his sister. When plaintiff returned from work that day, his His mother He has paid his

He has complained to his

mother had thrown his belongings out of the house.

informed him that he should not have called the police to come to her house. She then forced him to move to the basement of the

house and refused to clean it up for him. One day, plaintiff came home and his belongings had been thrown outside and the locks on the house had been changed. Plaintiff called the police and they informed his mother that she

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could not lock the plaintiff out of the house.

Plaintiff's

mother has started the process of evicting plaintiff from her home. Plaintiff has been unable to qualify for public assistance or low income housing in the City of Hartford. when the plaintiff does not eat. There are days

Plaintiff seeks to get his GED

this month to enable him to get a better job when the economy recovers. He seeks assistance from the court.

Plaintiff has not invoked any basis for federal question jurisdiction. Even if the court were to construe the complaint

as having been brought pursuant to 42 U.S.C. § 1983, plaintiff must allege facts showing that the defendant, a person acting under color of state, law deprived him of a federally protected right. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930 (1982).

Private parties are not generally liable under section 1983. In Lugar, the Supreme Court set forth a two-part test to determine when the actions of a private party may be attributed to the state so as to make the private party subject to liability under section 1983. First, "the deprivation must be caused by

the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible." Lugar, 457 U.S. at 937. "Second, the

party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a

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state official, because he has acted together with or obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Id. See also Dahlberg v.

Becker, 748 F.2d 85, 89 (2d Cir. 1984) ("to establish deprivation of a federally protected right there must be both `state action' and a `state actor'"), cert. denied, 470 U.S. 1084 (1985). Plaintiff has alleged no facts suggesting that mother is a state actor. Thus, he fails to establish a factual basis for a The claims against

claim that is cognizable under section 1983. the defendant are dismissed pursuant to 1915(e)(2)(B)(ii).

28 U.S.C. §

The court concludes that plaintiff would not

be able to amend his complaint to correct this deficiency. In addition, the complaint does not allege facts sufficient to invoke this court's diversity jurisdiction. The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is 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 as plaintiff and citizens of a State or of different States. For purposes of this section, ... an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. . . . ." 28 U.S.C. § 1332(a). A person's citizenship for purposes of

diversity jurisdiction is his domicile, which is defined as the 4

state in which a person is both present and intends to remain for the indefinite future. See Mississippi Band of Choctaw Indians A party's domicile is

v. Holyfield, 490 U.S. 30, 48 (1989).

assessed as of the date the lawsuit was filed, which in this case is December 28, 2009. See Durant, Nichols, Houston, Hodgson &

Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 63 (2d Cir.2009) (citation omitted) (to determine diversity jurisdiction "it must be determined whether at the time the present action was commenced there was diversity jurisdiction, that is, whether [one party] was a citizen of- i.e., domiciled in-a state other than the state" of which the opposing party is a citizen). Plaintiff provides no address for the defendant. is unclear where the defendant is domiciled. Thus, it

Plaintiff provides Plaintiff also

an address for himself in Hartford, Connecticut.

asserts that his mother sponsors him in this country and that an immigration attorney has given him legal advice. Thus, it is

apparent that plaintiff is or was an alien, but it is unclear as to whether he has "been admitted to the United States for permanent residence," such that he would be considered a citizen of Connecticut. 28 U.S.C. § 1332(a) ("an alien admitted to the

United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. . . . ."). The

facts, as alleged, do not provide sufficient information as to whether diversity of citizenship exists between the plaintiff and

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defendant.

Even if there were diversity of citizenship, the

plaintiff has failed to meet the amount in controversy requirement. defendant. Plaintiff seeks no monetary relief from the Thus, plaintiff has not stated a claim based on

diversity of citizenship. IV. Conclusion The complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) ii). The court declines to exercise supplemental See United Mine Workers

jurisdiction over any state law claims.

v. Gibbs, 383 U.S. 715, 715-26 (1966) (holding that, where all federal claims have been dismissed before trial, pendent state claims should be dismissed without prejudice and left for resolution by the state courts). If the plaintiff chooses to appeal this decision, he may not do so in forma pauperis, because such an appeal would not be taken in good faith. See 28 U.S.C. § 1915(a)(3)(2000). The

Clerk is directed to send a copy of this Order to the plaintiff, enter judgment for the defendant and close this case. SO ORDERED this 26th day of January, 2010, at Hartford, Connecticut. /s/ Christopher F. Droney Christopher F. Droney United States District Judge

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