Atkins-Payne v. Alterman et al

Filing 8

MEMORANDUM AND ORDER: For the foregoing reasons, the complaint is dismissed, but without prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B). Atkins-Payne is granted leave to amend her complaint within 30 days of the entry of this Order if she can do so in good faith. If plaintiff fails to file an amended complaint in this action within the time provided in this Order, this action will be dismissed with prejudice but solely as to its renting in this 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 purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Eric N. Vitaliano on 8/24/2014. C/M to pro se pltf (Fernandez, Erica)

FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

SEP 5- 2014

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BROOKLYN OFFICE

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PA TRICIA ATKINS-PAYNE,
Plaintiff,
MEMORANDUM & ORDER

-againstSIDNEY ALTERMAN; ALTERMAN TRANSPORT
LINES SERVICING AGENT INC.; RAYMOND COTY;
MIKE BOHAM; MIL TON WEINNER; JODI DOE;
JOHN M. KELLEY; OWEN SEYMOUR ARTHUR MP;
TRINSIC SPECTRUM BUSINESS; DIME SAVIN GS
BANK; WASHINGTON MUTUAL FfK/A;
WASHINGTON MUTUAL FA; JP MORGAN CHASE
BANK; JANE CHONG; MARGARET VENTOUR;
ANTHONY JOHN DAVID; EILEEN O'DONNELL;
LINDA CHRISTOPHER; MR. & MS. ROLAND DAVID;
MR. & MS. DEBORAH ARMSTRONG; AKEIN DAVID;
MARLA DAVID; NDE DAVID; ADE DAVID; CASSIE
YOUNG; CAROL YOUNG; MONIQUE DAVIDWILLIAM; BARBADOS NATIONAL BANK INC.;
REPUBLIC BANK LIMITED; 67 POLICE PRECINCT;
RAYMOND KELLEY; HSBC BANK; PRAA KARIN
OLANGE; NYC POLICE DEPARTMENT; JOHN DOE
FROM #1 THROUGH JOHN DOE #25; JANE DOE
FROM #1 THROUGH JANE DOE #25,

14-cv-4066 (ENV)(LB)

Defendants.
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VITALIANO, D.J.,
Plaintiff Patricia Atkins-Payne filed this prose action, on June 29, 2014, against
various banks, individuals, and New York City, one of its police precincts, and its
former Police Commissioner. Atkins-Payne's request to proceed informa pauperis is
granted, pursuant to 28 U.S.C. § 1915, solely for the purposes of this Order. For the
reasons discussed below, the action is dismissed without prejudice, and plaintiff is
granted leave to amend her complaint within 30 days of the docket entry of this Order

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if she can do so in good faith.
Background
Although the nature of plaintiff's action is difficult to discern from her 11-page
complaint and the 170 pages of exhibits annexed to it, the allegation of the following
facts can be gleaned. Evidently, plaintiff is the landlord of a rental property located at
1141 Hancock Street in Brooklyn, where she leased several apartments, for which at
least part of the rent is paid by the City of New York. The rent, she alleges, was at
times stolen by defendants Anthony David and Eileen O'Donnell, possibly in
connection with an identity fraud scheme. Atkins-Payne attaches dozens of checks
from New York City's Department of Social Services and handwritten accountings for
rental properties over various years between 2001 and 2006, but these exhibits are not
explained in the complaint. She further alleges, seemingly without relationship, that,
in 1987, David Payne, her husband, was brutally assaulted by defendant Raymond
Coty and suffered debilitating neurological damage as a result (some supporting
medical records are included among her annexed exhibits). Additionally, plaintiff
alleges that, in 2000, she and her family opened six accounts at the Dime Savings Bank,
which subsequently, along with other banks, defrauded her of funds, as part of a
conspiracy among various individuals and banks. She seeks $11 million in damages.
Standard of Review
A civil action complaint must provide "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This rule does
not require a plaintiff to provide "detailed factual allegations" in support of his claims
in order to survive a motion to dismiss, Bell At/. Corp. v. Twombly, 550 U.S. 544, 555

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(2007), but it does demand "more than an unadorned, the-defendant-unlawfullyharmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009). Indeed, mere
conclusory allegations or "naked assertions" will not survive dismissal without at least
some "further factual enhancement" providing substance to the claims alleged.

Twombly, 550 U.S. at 557. Additionally, a complaint that is "so confused, ambiguous,
vague or otherwise unintelligible that its true substance, if any, is well disguised," fails
to comply with Rule 8. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see also

Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).
When a plaintiff proceeds without legal representation, the Court must regard
that plaintiff's complaint in a more liberal light, affording her pleadings the strongest
interpretation possible. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Triestman v.

Federal Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (per curiam). Even so, the
Court must dismiss an in forma pauperis complaint if it "(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." 28 U.S.C. § 1915(e)(2)(B).
Discussion
I.

Subject Matter Jurisdiction
Plaintiff, even though proceeding pro se, has the burden of establishing that the

court has subject matter jurisdiction over the action she has filed. Hamm v. U.S., 483
F.3d 135, 137 (2d Cir. 2007); Ally v. Sukkar, 128 Fed. Appx. 194, 195 (2d Cir. 2005)
("Although we construe a prose plaintiff's complaint liberally, a plaintiff attempting to
bring a case in federal court must still comply with the relevant rules of procedural

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and substantive law, including establishing that the court has subject matter
jurisdiction over the action.") (citations omitted). Unlike state courts, "the federal
courts are only empowered to hear cases specifically authorized by the Constitution or
statute." Citibank, N.A. v. Swiatkoski, 395 F. Supp. 2d 5, 8 (E.D.N.Y. 2005) (citing

Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994)). The district
courts "have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States," 28 U.S.C. § 1331, or "where the matter in
controversy exceeds the sum of $75,000, exclusive of interest and costs, and is between .
. . citizens of different States." 28 U.S.C. § 1332(a). "The former is denominated
'Federal Question' jurisdiction, and the latter is denominated 'Diversity of
Citizenship' jurisdiction." Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209,
215 (2d Cir. 2010). Failure of subject matter jurisdiction is not waivable and may be
raised at any time, including by the court sua sponte. Lyndonville Sav. Bank & Trust

Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000). Where a court lacks subject matter
jurisdiction, dismissal is mandatory. Id. (citing Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541 (1986)); see also Fed. R. Civ. P. 12(h)(3).
The Court may not exercise subject matter jurisdiction over Alter-Payne's
complaint as presently stated. Even construing the complaint liberally, and
notwithstanding that Atkins-Payne rattles off several federal statutes on page 4 of her
complaint as conferring jurisdiction, the complaint itself alleges no facts to suggest that
defendants violated plainti:trs constitutional rights or violated any federal statute. Nor
is there diversity jurisdiction, since plaintiff and multiple defendants are residents of
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New York. It is also worth noting that, to the extent that Atkins-Payne's grievance is,
at bottom, a landlord-tenant dispute, federal courts do not have subject-matter
jurisdiction over such matters. Rosquist v. St. Marks Realty Assoc., LLC, No.
08-CV-2764 (NGG), 2008 WL 2965435, at *2 (E.D.N.Y. Aug. 1, 2008) (citing cases). In
any event, as currently stated, the complaint as against defendants must be dismissed
because plaintiff fails to state a claim that would confer jurisdiction upon this court
pursuant to its federal question or diversity jurisdiction. Manway Constr. Co. Inc. v.

Housing Authority of City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983); see also Fed. R.
Civ. P. 12 (h)(3)
II.

Failure to State a Claim
Since the Court does grant leave to re plead, it is important that plaintiff be

advised that her complaint must be dismissed as well for the independent reason that it
fails to comply with the dictates of Federal Rule of Civil Procedure 8. Plaintiff must
provide facts sufficient to allow each defendant to have a fair understanding of what
the plaintiff alleges each did or failed to do and whether there is a legal basis for
recovery. See Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005) (defining "fair notice"
as '"that which will enable the adverse party to answer and prepare for trial, allow the
application of res judicata, and identify the nature of the case so that it may be
assigned the proper form of trial."') (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d
Cir. 1995)); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991).
Here, plaintiff names over 80 defendants, but fails to provide facts connecting each of
these defendants to a violation of plaintifPs federal rights. Several defendants are not
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mentioned in the complaint at all. However, in light of plaintiff's prose status, the
Court grants her leave to cure these deficiencies, if she can, by amending her
complaint within 30 days in a way that complies with Rule 8, in addition to stating a
ground for federal subject matter jurisdiction. Of course, plaintiff is also free to use
this grant of leave to pursue her grievances in the form of state law claims in a state
court of general jurisdiction.
Conclusion
For the foregoing reasons, the complaint is dismissed, but without prejudice,
pursuant to 28 U.S.C. § 1915(e)(2)(B). Atkins-Payne is granted leave to amend her
complaint within 30 days of the entry of this Order if she can do so in good faith. If
plaintiff fails to file an amended complaint in this action within the time provided in
this Order, this action will be dismissed with prejudice but solely as to its refiling in
this 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 purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

/

Dated: Brooklyn, New York
August 24, 2014

s/Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

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