Rios v. Patel et al

Filing 6

ORDER GRANTING 2 Motion for Leave to Proceed in forma pauperis and DISMISSING COMPLAINT - For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, plaintiff is granted in forma pauperis status for purposes of this Order and t he complaint herein is DISMISSED for lack of subject matter jurisdiction. The dismissal is without prejudice to plaintiff's pursuit of any viable claims he may have against defendants in state court. The court certifies pursuant to 28 U.S.C. & #167; 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, 44445 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Summary Order to pro se plaintiff and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 8/16/2012. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JORGE RIOS, pro se,
:
:
Plaintiff,
:
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-against:
:
JITENDRA PATEL, PATIL RAJASHREE,
:
NELSON ALCARAZ, VITO BRUNELLI,
:
KIM H. HELEN, ALFONSO PONCE,
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and VIREN L. JHAVERI,
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:
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Defendants.
:
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DORA L. IRIZARRY, United States District Judge:

SUMMARY ORDER
12-cv-3383 (DLI)(JO)

On July 6, 2012, plaintiff Jorge Rios (“Plaintiff”) filed this pro se action against several
private medical professionals, purportedly under the Federal Tort Claims Act, 28 U.S.C. § 2671,
et seq. (“FTCA”). (See Compl., Dkt. Entry 1.) Plaintiff also seeks to proceed in forma pauperis.
(See Dkt. Entry 2.) The court grants Plaintiff’s request to proceed in forma pauperis solely for
the purpose of this Summary Order. For the reasons set forth below, the complaint is dismissed
for lack of subject matter jurisdiction.
In reviewing this 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). The court construes pro se pleadings “to
raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F. 3d
471, 474 (2d Cir. 2006) (emphasis omitted). A district court must nevertheless dismiss an in
forma pauperis action at any time when it fails to state a claim on which relief can be granted.
28 U.S.C. § 1915(e)(2)(B)(ii).

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It is axiomatic “that federal courts are courts of limited jurisdiction and lack the power to
disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols,
Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F. 3d 56, 62 (2d Cir. 2009) (quotation
marks omitted). “If subject matter jurisdiction is lacking and no party has called the matter to the
court’s attention, the court has the duty to dismiss the action sua sponte.” Id. Federal subject
matter jurisdiction exists only where the action presents a federal question pursuant to 28 U.S.C.
§ 1331 or where there is diversity jurisdiction pursuant to 28 U.S.C. § 1332. See Petway v.
N.Y.C. Transit Auth., 2010 WL 1438774, at *2 (E.D.N.Y. Apr. 7, 2010), aff’d, 450 F. App’x. 66
(2d Cir. 2011). Federal question jurisdiction is invoked where the plaintiff’s claim arises “under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under
federal law within the meaning of the general federal question statute only if the federal question
appears in the facts of the plaintiff’s well-pleaded complaint. See Louisville & Nashville R.R. v.
Mottley, 211 U.S. 149 (1908).
Plaintiff’s complaint does not assert any valid basis for this court’s jurisdiction over his
claims. Plaintiff invokes the jurisdiction of this court pursuant to the FTCA. (See Compl. at 2.)
The FTCA waives sovereign immunity and permits some suits for damages against the United
States, after filing an administrative claim. See 28 U.S.C. § 2674. However, Plaintiff does not
name the United States government as a defendant or allege that any of the defendants are
government officials. 1

Plaintiff’s complaint describes a series of visits to private medical

facilities and professionals between March 26, 2010 and May 14, 2012. (See Compl. at 2-8.) He
alleges that the defendants misdiagnosed his conditions and provided inadequate or ineffective
1

Even if the FTCA applied, the court still would lack subject matter jurisdiction because
Plaintiff does not show that he exhausted his administrative remedies by filing a claim with the
federal agency and receipt of a final agency decision. See 28 U.S.C. § 2675(a); Celestine v.
Mount Vernon Neighborhood Health Ctr., 403 F. 3d 76, 82 (2d Cir. 2005).
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medical treatment. (See id.) Plaintiff further states that, on February 28, 2012, he began
speaking to an attorney “about my malpractice medical.” (Id. at 8.) The attorney eventually
indicated that he does not handle malpractice cases. (Id. at 9.)
These allegations do not allege the violation of any federal law or constitutional right or
otherwise suggest any basis for federal question jurisdiction, including under the FTCA. Instead,
it appears that Plaintiff is attempting to state a claim for medical malpractice, which does not
give rise to an issue of federal law. Moreover, there is no diversity jurisdiction, as Plaintiff states
that he and all of the defendants reside in New York State. (See id. at 1-2.) As Plaintiff neither
raises a question of federal law, nor asserts diversity jurisdiction, the court has no basis for
federal subject matter jurisdiction over this action.
CONCLUSION
For the reasons set forth above, the complaint herein is dismissed for lack of subject
matter jurisdiction, without prejudice to plaintiff’s pursuit of any viable claims he may have
against defendants in state court. 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).
SO ORDERED.
Dated: Brooklyn, New York
August 16, 2012
/s/
DORA L. IRIZARRY
United States District Judge

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