Heriveaux v. Federal Government

Filing 5

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis. For the reasons discussed below, the complaint is dismissed with leave to file an amended complaint provided she does so within 30 days of the entry of this Memorandum and Order on the docket. So Ordered by Judge Eric N. Vitaliano on 12/11/2014. (c/m) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------x
MAGALY E. HERIVEAUX,
MEMORANDUM AND ORDER
14-CV-7105 (ENV)

Plaintiff,
-againstFEDERAL GOVERNMENT,
Defendant.

-----------------------------------------------------------x
VITALIANO, United States District Judge.
Plaintiff Magaly E. Heriveaux filed this prose action on December 2, 2014.
The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. For the reasons discussed below, the complaint is dismissed with
leave to file an amended complaint provided she does so within 30 days of the entry
of this Memorandum and Order on the docket.
Background
Heriveaux names the "Federal Government" as the lone defendant in the
caption of her one-page complaint, but does not offer any facts to support a claim of
specific wrong to her. Instead, her complaint in its entirety states that she is a
law-abiding civilian and a victim of character defamation and cruel
and unusual punishment due to slander, inducement of my immediate
support system over a period of time, abuse of power, invasion of
privacy and other excessive means (i.e. abuse of technology, misuse and
waste of funds, disproportionate representation, failure to identify,
failure to provide adequate information and inducement of mental and
emotional anguish. This hardship is perpetuated by isolating me from
my immediate support system, mail fraud, censorship,
1

telecommunication interruptions and other obstructions. Additionally,
I affirm that cruel and unusual punishment is also enforced through,
manipulation, degradation, and stigmatization. Other tactics such as,
intimidation, threats to one's safety, as well as my family and
immediate support system are also utilized to bring about duress and
distress. Exploitation, sexual discrimination, sexual harassment,
overall harassment, hindrances in health care services, inducement of
financial hardship and more are used to secure and maintain control.
All efforts have been made to diminish, redress or desist all activities. I
also attest that these statements are not geared towards my political or
religious affiliation. All of these torts and violations are conducted
against my will.
Compl. at 1. Plaintiff seeks "an estoppel on all activities." Id. See also Plaintiff's
Motion for Estoppel.
Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an informa

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."
At the initial 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. Igbal, 556 U.S. 662, 678-79 (2009)). But even with the assumption of
truth, a complaint must plead sufficient facts (not conclusory arguments) to "state a
claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Furthermore, it is axiomatic that pro se complaints are held to less
stringent standards than pleadings drafted by attorneys and the Court is required

2

to read a prose complaint like this one liberally and interpret it to raise the
strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes
v. Rowe, 449 U.S. 5, 9 (1980).
Discussion
Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must
provide a short, plain statement of her claims against each named defendant so that
each defendant has adequate notice of the claims against them. Igbal, 556 U.S. at
678 (stating that Rule 8 "demands more than an unadorned, the-defendantunlawfully-harmed-me accusation."). A plaintiff must provide facts sufficient to
allow each named defendant to have a fair understanding of what the plaintiff is
complaining about and to know whether there is a legal basis for recovery. See
Twombly, 550 U.S. at 545; Ricciuti v. New York City Transit Auth., 941F.2d119,
123 (2d Cir. 1991).
Here, even after granting such a charitable reading of plaintiff's complaint, it
is impossible to determine what plaintiff's federal cause of action is against
defendant. 1 A global assault on the maladministration of government, moreover, is
ordinarily a matter for the ballot box and not the courtroom.

1

In any event, plaintiff is advised that "[a]bsent an 'unequivocally expressed'
statutory waiver, the United States, its agencies, and its employees (when
functioning in their official capacities) are immune from suit based on the principle
of sovereign immunity." County. of Suffolk, N.Y. v. Sebelius, 605 F.3d 135, 140 (2d
Cir. 2010) (citing Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999)).
Given the complaint's manifesto, it is highly dubious that Heriveaux will be able to
state a claim that does not run afoul of this principle.

3

Conclusion
In line with the foregoing, the complaint is dismissed without prejudice, 28
U.S.C. § 1915(e)(2)(B), and whatever relief was intended by the motion denominated
a motion for estoppel is denied with it. In light of the duty to liberally construe pro

se complaints, however, and in an abundance of caution, plaintiff is given 30 days
leave to file an amended complaint. Erickson, 551 U.S. at 94.
Plaintiff is directed that the amended complaint must comply with Rule 8(a)
of the Federal Rules of Civil Procedure. Should plaintiff elect to file an amended
complaint, the amended complaint must state the basis for federal jurisdiction and
must set forth the factual allegations to support plaintiff's claims against each
named defendant. Plaintiff must identify each defendant in both the caption and
the body of the amended complaint, specifically, as to any properly named
defendant, the individual named must have some personal involvement in the
wrongful actions plaintiff alleges in the amended complaint harmed her. Plaintiff
must also provide the dates and locations for each relevant event. To the extent
plaintiff does not know the name of the individual, plaintiff may identify the
individual as John or Jane Doe, along with descriptive information and place of
employment.
Heriveaux is advised that an amended complaint does not simply add to the
first complaint. Once an amended complaint is filed, it completely replaces the
original. Therefore, plaintiff must include in the amended complaint all the
necessary information, if any, that was contained in the original complaint. The
4

amended complaint must be captioned as the "Amended Complaint" and bear the
same docket number as this Order.
If plaintiff fails to comply with this Order within the time allowed, judgment

dismissing her complaint shall enter. No summons shall issue at this time and all
further proceedings shall be stayed the time allowed to comply with this Order shall
have elapsed or until further Order of the Court.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis status is denied for
purpose of an appeal. Coppedge v. United States, 269 U.S. 438, 444-45 (1962).

So Ordered.

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

Dated:

Brooklyn, New York
December 11, 2014

5