El-Bey v. T-Mobile (NYC) et al

Filing 11

MEMORANDUM AND ORDER: Plaintiff's 6 Amended Request to Proceed IFP is granted solely for the purpose of this Order. Plaintiff's 1 Complaint is dismissed in its entirety for lack of subject matter jurisdiction. Plaintiff's submission entitled 7 "Refused for Cause" to the extent it can be liberally construed as a motion for reconsideration of the Court's 6/13/2012 Order directing plaintiff to file an amended IFP or pay the filing fee is denied as m oot. Plaintiff's 8 "Affidavit as Fact Order to Show Cause for Permanent Relief" is also denied. Any state law claims are dismissed without prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Judge Allyne R. Ross, on 7/11/2012. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)

rn.......,

IN CLERK's OFPICI
9-~cJ4
UJS. DISTRICT COURT E.D.N.Y. ~\.t1

.'

*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------)(
STANLEY ARISTILDE EL-BEY, Ex ReI.
Stanley Aristilde (Natural Person in Propria Persona),
Plaintiff,

JUL ·t" 9 2012

*

BROOKLYN OFFICE
NOT FOR ELECTRONIC
OR PRINT PUBLICATION

MEMORANDUM
AND ORDER

-againstT-MOBILE CO (NYC)/uS CORP/
US TREASURY/ & SPRINT,

12-CV-2738 (ARR) (LB)

Defendants.

-------------------------------------------------------------)(
ROSS, United States District Judge:
On May 29,2012, plaintiff Stanley Aristilde EI-Bey, filed this pro se action. By order dated
June 13, 2012, the court denied plaintiff s request to proceed in forma pauperis ("IFP") and directed
plaintiff to file an amended IFP application or pay the $350 filing fee in order to proceed with this
action. The court also warned plaintiff that it lacked subject matter jurisdiction over the complaint
as presented. On June 19,2012, plaintiff filed an amended IFP application. See Dkt. No. #6. On
June 20, 2012, plaintiff submitted a copy of the first page of the court's June 13,2012, order which
contained the handwritten notation "Refused for Cause." On June 29, 2012, plaintiff filed a
submission entitled "Affidavit as Fact, Order to Show Cause for Permanent Relief' seeking an order
that T-Mobile "fully restore all services to [his] cellphone." PI. Aff. at 1. On July 6, 2012, plaintiff
filed a letter stating simply "72 hr request I need my cell phone service." Plaintiff's amended request
to proceed IFP is granted solely for the purpose of this order.! Plaintiffs complaint is dismissed as
set forth below.

! Plaintiff states that he is currently employed at the Mendik Library at New York Law
School, but does not state his earnings per month as required. Instead, plaintiff alleges that "there is
no lawful money in circulation." PI. Am. IFP at ~ 1.

.'

Background
Plaintiff alleges that his cell phone service was cut off for "unlawful reasons" and seeks a
court order directing T-Mobile "to restore FULL service .... " CompI. at 1: PI. Aff. at 1. Although
plaintiff names "US Corp," "US Treasury" and Sprint as defendants in the caption, plaintiff only
makes allegations against T-Mobile.

Standard of Review
In reviewing plaintiff s complaint, the court is mindful that, "a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers."

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted). A complaint must
plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim will be considered "plausible on its face" "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).
Nonetheless, pursuant to the in forma pauperis statute, the court must dismiss a complaint
, if it determines that the action "(i) is frivolous or malicious, (ii) fails to state a claim upon which
relief may be granted, or (iii) seeks monetary relief from a defendant who is immune from such
relief." 28 U.S.C. § 1915(e)(2)(B). Finally, ifthe court "determines at anytime that it lacks subjectmatter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3); accord Cave v. East

Meadow Union Free School Dist., 514 F.3d 240, 250 (2d Cir. 2008).
Discussion
The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28
2

U.S.C. §§ 1331 and 1332. Section 1331 provides for "[fJederal-question" jurisdiction, § 1332 for
"[ d]iversity of citizenship" jurisdiction. A plaintiff properly invokes § 1331 jurisdiction when he
pleads a colorable claim "arising under" the Constitution or laws of the United States. He invokes
§ 1332 jurisdiction when he presents a claim between parties of diverse citizenship that exceeds the
requiredjurisdictional amount, currently $75,000. See § 1332(a). Arbaugh v. Y & H Corp., 546 U.S.
500, 513 (2006) (quoting Bell v. Hood, 327 U.S. 678, 681-685 (1946».
Here, plaintiff s dispute with defendant T -Mobile fails to present a federal question or meet
the diversity and amount-in-controversy requirements of § 1332. "[S]ubject-matter jurisdiction,
because it involves the court's power to hear a case, can never be forfeited or waived." United States
v. Cotton, 535 U.S. 625, 630 (2002). Moreover, federal courts, have an independent obligation to
determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any
party. RuhrgasAGv. Marathon Oil Co., 526 U.S. 574, 583 (1999); Wynnv. AC Rochester, 273 F.3d
153, 157 (2d Cir. 2001); Fed. R. Civ. P. 12(h)(3). Therefore, plaintiffs claim concerning his dispute
with T -Mobile

over his cellular telephone service

is dismissed for lack of subject matter

jurisdiction.

Conclusion
Accordingly, the complaint, filed informa pauperis, is dismissed in its entirety for lack of
subject matter jurisdiction.

Fed. R. Civ. P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(B). Plaintiffs

submission entitled "Refused for Cause," see Dkt. No.7, to the extent it can be liberally construed
as a motion for reconsideration of the court's June 13, 2012 order directing plaintiff to file an
amended IFP or pay the filing fee is denied as moot. Plaintiffs "Affidavit as Fact Order to Show
Cause for Permanent Relief' is also denied, see Dkt. No.8. Any state law claims are dismissed
3

.without prejudice.

The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an
appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

S/Judge Ross

Dated: July II ,2012
Brooklyn, New York

4