Pavlovich v. New York State et al

Filing 4

ORDER DISMISSING CASE. All pending motions are denied as moot. This case is CLOSED. Signed by Judge Kenneth A. Marra on 9/8/2011. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-81009-CIV-MARRA
ILIYA PAVLOVICH,
Plaintiff,
vs.
STATE OF NEW YORK, et al.,
Defendants.
_____________________________________/
OPINION AND ORDER DISMISSING CASE
This cause is before the Court upon Plaintiff’s Motion for Leave to Proceed In Forma
Pauperis. (DE 2). The Court has carefully considered the motion and is otherwise fully advised
in the premises.
On August 29, 2011, Plaintiff, in another case before this Court, proceeding pro se, filed a
similar complaint against Defendants—the State of New York, Andrew Cuomo, as Governor of
New York, Karen Atkinson, as officer of the New York Tax and Finance Department, and
Thomas Mattox, as commissioner of the New York Tax and Finance Department—asserting a
number of constitutional claims. See Case No. 11-80969-CIV-Marra. On September 1, 2011,
this Court sua sponte dismissed that complaint for failure to allege personal jurisdiction, failure
to state a claim, and improper venue.
Plaintiff has now filed a similar complaint against the same defendants as a new case.
(DE 1). Plaintiff has also filed an application to proceed in forma pauperis. (DE 2). For the
same reasons that this Court dismissed Plaintiff’s first complaint in Case Number 11-80969, the
Court will dismiss this new complaint.

Under 28 U.S.C. § 1915(e)(2)(B):
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that-(B) the action or appeal-(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
The Court must first examine whether this complaint is frivolous or fails to state a claim
before reaching a determination on the merits of Plaintiff’s in forma pauperis application. Cf.
Herrick v. Collins, 914 F.2d 228, 229 (11th Cir. 1990) (holding that the court should first
determine whether the complaint was frivolous before ordering the plaintiff to pay a partial filing
fee).
The Supreme Court has established that a court should afford a pro se litigant wide
leeway in pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (holding
allegations of a pro se complaint to a less stringent standard than formal pleadings drafted by
lawyers). However, this leniency does not give the court license to rewrite an otherwise deficient
pleading in order to sustain an action. GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369
(11th Cir. 1998). Pro se litigants are required to meet certain essential burdens in their pleadings.
See Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).
Plaintiff’s complaint alleges that while he was a resident of Palm Beach County, the State
of New York and certain of its officials issued a tax warrant to seize funds from Plaintiff’s bank
account to satisfy unpaid taxes relating to Plaintiff’s New York business. Plaintiff contends that
he did not owe taxes and that therefore this seizure violated his Fourth, Fifth, and Fourteenth
Amendment rights. Plaintiff seeks $3,000,000.00 in damages.

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Again, the Court finds that the complaint fails to allege personal jurisdiction against any
Defendant. A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant
bears the initial burden of pleading enough facts to make out a prima facie case for personal
jurisdiction. United Tech. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009); Polski Linie
Oceaniczne v. Seasafe Transport A/S, 795 F.2d 968, 972 (11th Cir. 1986). Here, Plaintiff seeks to
sue the State of New York and three New York officials, but the complaint fails to allege any
contacts whatsoever with Florida, the forum state. Accordingly, Plaintiff has failed to allege
personal jurisdiction and the Court must dismiss this complaint. See Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
The Court also finds, again, that this complaint fails to state a claim upon which relief can
be granted. A complaint must allege sufficient factual matter, accepted as true, to state a
plausible claim to relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Here, the complaint
fails to allege the elements of any cause of action nor facts supporting those elements.
Accordingly, the complaint fails to allege sufficient facts to state a claim and must be dismissed.
As this Court held in its first order dismissing Plaintiff’s complaint, giving Plaintiff leave
to amend his complaint would be futile. The Courts see no legal theory upon which Plaintiff
could assert valid claims against the State of New York Defendants named in the complaint.
Moreover, even if a valid legal theory could be developed against these Defendants, the acts
complained of occurred in the State of New York and venue would lie there. The fact that
Plaintiff resided in Palm Beach County when Defendants allegedly seized his funds is irrelevant.
The allegedly wrongful acts took place in New York and all of the Defendants are resident there.
This Court is clearly the improper forum. Accordingly, it is hereby ORDERED AND
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ADJUDGED that the complaint is DISMISSED.
The Clerk of Court shall CLOSE this case. All pending motions are DENIED AS
MOOT.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 8th day of September, 2011.

______________________________________
KENNETH A. MARRA
United States District Judge

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