Banks v. Constantine et al
MEMORANDUM AND ORDER: The motion for leave to proceed in forma pauperis is granted solely for purposes of this Order and the complaint is dismissed for lack of subject-matter jurisdiction. The Court certifies pursuant to 28 U.S.C. § 191 5(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. The Clerk of Court is respectfully directed to enter judgment and close the case. A copy of this Memorandum and Order will be mailed to Banks. Ordered by Judge John Gleeson on 7/10/2012. (Gonen, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MARIE L. BANKS,
- versus -
MEMORANDUM AND ORDER
12-CV-3239 (JG) (RER)
GEORGE CONSTANTINE; DR. PETER
KALCANIS; ORTHOPEDIC GROUP NORTH
SHORE LIJ; and THE CITY OF NEW YORK,
JOHN GLEESON, United States District Judge:
Plaintiff Marie L. Banks commenced this pro se action on June 27, 2012, seeking
leave to proceed in forma pauperis. I grant her request to proceed in forma pauperis solely for
the purpose of this Order and dismiss the complaint for the reasons set forth below.
Banks’s complaint involves two slip-and-fall accidents, first on September 11,
2010, and then on March 27, 2012. Banks appears to allege medical and legal malpractice
arising from her attempts to obtain medical treatment and legal representation in connection with
these accidents. See Compl. p. 2, ECF No. 1. In addition, as her “Statement of Claim,” Banks
sets forth the following: “surgical assault, Medical Fraud, conspiracy, Civil Rights, Tortures,
Malpractice of lawyer, sign of Government Benefits to pay Notorious Team of Medical Fraud
with 20 years of experience & more.” Id. at 1, ¶ III.
Standard of Review
Under 28 U.S.C. 1915(e)(2)(B), a district court shall dismiss an in forma pauperis
action where it is satisfied that the action “(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.”
To avoid dismissal, a complaint must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. 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, 129 S. Ct. 1937, 1949 (2009).
Moreover, a plaintiff must establish that the court has subject matter jurisdiction
over the action. See, e.g., Rene v. Citibank NA, 32 F. Supp. 2d 539, 542 (E.D.N.Y. 1999); see
also Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). The subject matter jurisdiction of the
federal courts is limited. Federal jurisdiction is available when a “federal question” is presented,
28 U.S.C. § 1331, or when the plaintiff and defendants are of diverse citizenship and the amount
in controversy exceeds $75,000, id. § 1332(a). If a federal court “determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see
also Arbaugh, 546 U.S. at 514.
A court must construe a pro se litigant’s pleadings liberally, Erickson v. Pardus,
551 U.S. 89, 94 (2007); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and a pro se complaint
should not be dismissed without granting the plaintiff 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) (internal quotation marks and citation
omitted). Nevertheless, “a pro se plaintiff must still comply with the relevant rules of procedural
and substantive law, including establishing that the court has subject matter jurisdiction over the
action.” Wilber v. U.S. Postal Serv., No. 10-CV-3346 (ARR), 2010 WL 3036754, at *1
(E.D.N.Y. Aug. 2, 2010) (internal quotation marks and citations omitted).
Banks’s claims alleging medical malpractice and legal malpractice must be
dismissed for lack of subject matter jurisdiction. Banks does not allege any facts that would
support diversity jurisdiction and these claims arise under state law, not federal law. See, e.g.,
Ryan v. Ajami, No. 02-CV-4019, 2002 WL 31890050, at *3 (S.D.N.Y. Dec. 30, 2002) (legal
malpractice); Obunugafor v. Borchert, No. 01-CV-3125 (WK), 2001 WL 1255929, at *2
(S.D.N.Y. Oct. 19, 2001) (medical malpractice). The complaint’s conclusory references to
medical fraud, conspiracy, civil rights, torture and government benefits are insufficient to
establish federal subject-matter jurisdiction. See, e.g., Novikova v. IRS, No. 04-CV-5324 (DLI)
(LB), 2007 WL 2891301, at *9 (E.D.N.Y. Sept. 28, 2007).
The claims against the City of New York must also be dismissed for lack of
subject-matter jurisdiction. Any negligence claim against the City of New York in connection
with Banks’s slip-and-fall accidents does not arise under federal law. See, e.g., Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998); Daniels v. Williams, 474 U.S. 327, 328 (1986).
Because the defects in subject-matter jurisdiction do not appear to be curable, the
complaint is dismissed without leave to amend. See, e.g., U.S. ex rel. Phipps v. Comprehensive
Cmty. Dev. Corp., 152 F. Supp. 2d 443, 455–56 (S.D.N.Y.2001); see also Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (“Where it appears that granting leave to
amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.”).
For the reasons stated above, the Court dismisses the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B). 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. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). The
Clerk of Court is respectfully directed to enter judgment and close the case.
John Gleeson, U.S.D.J.
Dated: July 10, 2012
Brooklyn, New York
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