Felix v. Avila

Filing 4

ORDER granting 3 Motion for Leave to Proceed in forma pauperis for purposes of this Order only; Dismissing Complaint and Granting Leave to Amend -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Plaintiff's mot ion to proceed in forma pauperis is granted for the purpose of this Order. The complaint is dismissed without prejudice and with leave to amend NO LATER THAN April 1, 2015 in accordance with the Attached Written Memorandum and Order. Plainti ff is advised that any amended complaint he files will completely replace the original complaint. Plaintiff's amended complaint must be captioned as an "AMENDED COMPLAINT" and bear the same docket number as this Order. For the conven ience of pro se plaintiff, "Instructions on How to Amend a Complaint" are attached. All further proceedings shall be stayed until April 1, 2015 so that plaintiff may comply with this Order. If plaintiff fails to file an amended com plaint by April 1, 2015, a judgment dismissing the complaint shall be entered. 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 statu s is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order, and the Attached Written Memorandum and Order and Instructions on How to Amend a Complaint to pro se plaintiff. SO ORDERED by Judge Dora Lizette Irizarry on 3/2/2015. (Attachments: # 1 Supplement) (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARTIAL JEAN FELIX, pro se,

SUMMARY ORDER
13-CV-983(DLI)(LB)

Plaintiff,
-vDOUGLAS AVILA,
Defendant.
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DORA L. IRIZARRY, United States District Judge.
On February 20, 2013, plaintiff Martial Jean Felix, filed the instant pro se 1 action. (See
Complaint (“Compl.”), Dkt. Entry No. 1.) Plaintiff’s request to proceed in forma pauperis (Dkt.
Entry No. 3) is granted for purposes of this Order. For the reasons set forth below, the complaint
is dismissed for failure to state a claim. However, closure of the case is stayed until April 1,
2015 to permit plaintiff to file an amended complaint.
DISCUSSION
Plaintiff alleges that his son was beaten up at school by a fellow student and that
subsequently his son was suspended from school.

(Compl. 2.)

Plaintiff alleges that the

defendant, who is the Principal of the school where the incident took place, failed to discipline
the other student as that student is his nephew.

(Id.)

Plaintiff alleges that his son was

discriminated against by school officials based on his color and Plaintiff seeks to “press charges
against the Principal and his aunt.” (Id.)

1

Pro se pleadings are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should “interpret [such papers] to raise the strongest
arguments that they suggest.” Forsyth v. Fed’n Emp’t & Guidance Serv., 409 F. 3d 565, 569 (2d Cir. 2005) (citation
and quotation marks omitted). Though a court need not act as an advocate for pro se litigants, in such cases “there is
a greater burden and a correlative greater responsibility upon the district court to insure that constitutional
deprivations are redressed and that justice is done.” Davis v. Kelly, 160 F. 3d 917, 922 (2d Cir. 1998) (citation
omitted).

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.” An action is “frivolous” when either: (1) “the ‘factual contentions are clearly
baseless,’ such as when allegations are the product of delusion or fantasy”; or (2) “the claim is
‘based on an indisputably meritless legal theory.’” Livingston v. Adirondack Beverage Co., 141
F. 3d 434, 437 (2d Cir. 1998) (internal citation omitted).

At the pleadings stage of the

proceeding, the Court must assume the truth of “all well-pleaded, nonconclusory factual
allegations” in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F. 3d 111, 123 (2d Cir.
2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

However, a complaint must plead

sufficient facts to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Turning to the instant action, it is well settled that “a private citizen does not have a
constitutional right to bring a criminal complaint against another individual.” Price v. Hasly,
2004 WL 1305744, *at 2 (W.D.N.Y. June 8, 2004) (citing Leeke v. Timmerman, 454 U.S. 83
(1981)). Therefore, to the extent that plaintiff brings this action solely to “press charges” against
the Principal of the school, the action is dismissed for failure to state a claim upon which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B).
Nevertheless, in an abundance of caution and in deference to plaintiff’s pro se status, the
Court grants plaintiff leave to file an amended complaint within thirty (30) days, i.e., by no later
than April 1, 2015, to clarify who the parties to the action are, and to allege a basis for the
Court’s exercise of jurisdiction. See Cruz v. Gomez, 202 F. 3d 593 (2d Cir. 2000). First,
plaintiff should clarify whether he brings the action on his behalf or on behalf of his child.

2

Notably, a parent may not bring an action on behalf of his or her child without representation by
counsel. See, e.g., Tindall v. Poultney High Sch. Dist., 414 F. 3d 281, 284 (2d Cir. 2005) (“It is
thus a well-established general rule in this Circuit that a parent not admitted to the bar cannot
bring an action pro se in federal court on behalf of his or her child.”).
Second, if plaintiff elects to file an amended complaint it must comply with Rule 8(a) of
the Federal Rules of Civil Procedure, which requires plaintiffs to provide a short and plain
statement of each claim against each defendant named so the defendants have adequate notice of
the claims against them. See Fed. R. Civ. P. 8(a).
Third, the complaint must contain allegations that provide a basis for the Court to assume
jurisdiction over the subject matter of the case. Although plaintiff does not need to provide the
precise statute under which he is seeking relief, he must provide sufficient facts to enable the
Court to determine the legal basis for the claim. 2
Fourth, plaintiff must name each defendant in the caption of the complaint. If plaintiff
does not know the name of a particular defendant he may refer to that person as John or Jane
Doe, and give his or her position or other identifying information. Plaintiff’s statement of facts
should include a brief description of what each defendant did or failed to do, and how each
defendant’s acts or failure to act caused injury. Plaintiff must state the name of the school where
the alleged incident took place.
Finally, the complaint must contain a statement as to the type of relief sought.

2

Title VI prohibits programs that receive federal funding from discriminating on the basis of race. 42 U.S.C.
§ 2000d. To plead discrimination under Title VI, plaintiff must allege that: (1) defendants discriminated against
him on the basis of race, (2) the discrimination was intentional, and (3) the discrimination was a substantial or
motivating factor for defendants’ actions. See TC v. Valley Cent. School Dist., 777 F. Supp. 2d 577, 594 -595
(S.D.N.Y. 2011).

3

CONCLUSION
Plaintiff’s motion to proceed in forma pauperis is granted for the purpose of this Order.
The complaint is dismissed without prejudice and with leave to amend no later than April 1,
2015 in accordance with this Order. Plaintiff is advised that any amended complaint he files will
completely replace the original complaint. Plaintiff’s amended complaint must be captioned as
an “AMENDED COMPLAINT” and bear the same docket number as this Order. For the
convenience of pro se plaintiff, “Instructions on How to Amend a Complaint” are attached. All
further proceedings shall be stayed until April 1, 2015 so that plaintiff may comply with this
Order. If plaintiff fails to file an amended complaint by April 1, 2015, a judgment dismissing the
complaint shall be entered. 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 purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
DATED:

Brooklyn, New York
March 2, 2015
_________________/s/_______________
DORA L. IRIZARRY
United States District Judge

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