Miller v. Huffington Post et al

Filing 5

MEMORANDUM AND ORDER: Plaintiff's 2 request to proceed in forma pauperis is granted for the limited purpose of this order, and the action is dismissed as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1 915(e)(2)(B), and for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). Plaintiff is warned that the future filing of frequent frivolous lawsuits may result in the imposition of sanctions, including the issuance of a filing injunction. 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 pauper is status is denied for purpose of an appeal. SO ORDERED by Judge William F. Kuntz, II - on 4/15/2015. C/mailed to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

f&Lb.J

U.l.~O.N.'t

*APR 152015
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLI@l~YN OF~

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SELINA MILLER,
Plaintiff,
MEMORANDUM AND ORDER
-against15-CV-1300 (WFK)
HUFFINGTON POST, KOBE BRYANT, and
TAMARA BARKSDALE,
Defendants.

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WILLIAM F. KUNTZ, United States District Judge:
On March 11, 2015, plaintiff Selina Miller filed this pro se action alleging sexual
harassment against Kobe Bryant and false reporting by the Huffington Post. Plaintiffs request to
proceed informa pauperis is granted for the limited purpose of this order, and the action is
dismissed as frivolous.
The complaint alleges a series of allegations against defendant Kobe Bryant, presumably
the professional basketball player, the Huffington Post, and Tamara Barksdale, who is identified
as a fraudulent alter ego for Selina Miller. (Compl. iJ 6.) The allegations include the following
claims: "Kobe Bryant made a unwelcome sexual relationship to Selina Miller to Bust her -

and

lethal whip her for lack ofresponsive behaviors to his remarks." (Compl. ii 2.) "Kobe Bryant
called Selina Miller a 'lying bitch.'" (Compl. ii 3.) "The defendant Kobe Bryant conspired with
Huffington Post to have a never legally married couple announced as divorced." (Compl. ii 4.)
"[D]efendant Vanessa Bryant seeked to exploit monies from the plaintiff inheritance" [sic].
(Compl. ii 5.) "The defendant Kobe Bryant states [various named individuals] know[s] the
plaintiff Selina Miller is a prostitute." (Compl.

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iii! 7, 8.) The complaint does not assert any basis

for this Court's jurisdiction nor make any demand for relief.
"A document filed prose is to be liberally construed, and a prose 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) (internal quotation marks and citations
omitted). If a liberal reading of the complaint "gives any indication that a valid claim might be
stated," the Court must grant leave to amend the complaint. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000). However, "a complaint must contain sufficient factual matter ... to
"state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Title 28, section
1915(e)(2)(B) of the United States Code requires a district court to dismiss a case if the court
determines 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 "the factual contentions are clearly baseless, such as when
allegations are the product of delusion or fantasy."' Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998) (internal quotations and citations omitted). "[A] finding of factual
frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts available to contradict them."

Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Moreover, a plaintiff seeking to bring a lawsuit in federal court must establish that the
court has subject matter jurisdiction over the action. See, e.g., Rene v. Citibank NA, 32 F. Supp.
2d 539, 541-42 (E.D.N. Y. 1999). "[F]ailure of subject matter jurisdiction is not waivable and
may be raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is
lacking, the action must be dismissed." Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d
697, 700-01 (2d Cir. 2000) (citations omitted). Federal subject matter jurisdiction is available
only when a "federal question" is presented, or when plaintiff and defendants have complete
diversity of citizenship and the amount in controversy exceeds $75,000. In order to invoke
federal question jurisdiction, the plaintiffs claim(s) must arise "under the Constitution, laws, or

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treaties of the United States." 28 U.S.C. § 1331.
As should be readily apparent from a casual reading of the complaint, the claims in this
case "rise to the level of the irrational or the wholly incredible." Denton, 504 U.S. at 33. Even if
the Court credited plaintiffs allegations, none of her claims suggests a basis for federal subject
matter jurisdiction. Sexual relationships, defamation, and inheritance may be regulated by state
law provisions, but may not normally serve as the basis for a federal lawsuit. The complaint does
not provide sufficient information to determine any basis for diversity jurisdiction. The Court
has considered whether a valid claim might be stated, and concludes that the deficiencies in the
complaint are not such that could be cured by amendment. Accordingly, the complaint is
dismissed as frivolous, for failure to state a claim, and for lack of subject matter jurisdiction.
Plaintiffs previous lawsuit in this Court alleged similar sexual harassment claims against
singer Joe Lewis, but was dismissed without prejudice for failure to pay the filing fee. Miller v.

BB King Blues Club/Grill, No. 13-CV-4478-WFK-JO, slip op. (E.D.N.Y. Sept. 6, 2013.)
Plaintiff has made similar claims against Kobe Bryant in suits filed in other jurisdictions. Miller

v. Bryant, No. 14-CV-952, 2015 WL 417858 (S.D.Miss. Jan. 30, 2015) (dismissed for lack of
jurisdiction, as frivolous and for failure to state a claim on which relief may be granted); Miller v.

NBA, et al., No. 09-CV-580, slip op. (S.D. Ohio July 27, 2009) (dismissed as frivolous or for
failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)); Miller v. Atty Gen. ofState of

Ohio, No. 03-CV-253, slip op. (S.D. Ohio Sept. 2, 2003) (granting motion to dismiss for failure
to state a claim). Plaintiff has been declared a vexatious litigator and barred from filing suit
without prior leave of court. Miller v. Ohio Bd. of Regents, et al., No. 01-CV-550, slip op. (S.D.
Ohio Aug. 21, 2003) (noting plaintiffs history of filing frivolous suits in federal court and Ohio
county courts). Plaintiff is warned that the future filing of duplicative and frivolous litigation
may result in the imposition of an injunction prohibiting her from making future filings in this
Court seeking in forma pauperis status without leave of the Court. See Lau v. Meddaugh, 229

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F.3d 121, 123 (2d Cir. 2000) ("The district courts have the power and the obligation to protect
the public and the efficient administration of justice from individuals who have a history of
litigation entailing vexation, harassment and needless expense to other parties and an
unnecessary burden on the courts and their supporting personnel." (internal quotations and
citations omitted)); In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) ("With respect to civil
litigation, courts have recognized that the normal opportunity to initiate lawsuits may be limited
once a litigant has demonstrated a clear pattern of abusing the litigation process by filing
vexatious and frivolous complaints.").
CONCLUSION
For the reasons set forth above, the complaint is dismissed as frivolous and for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B), and for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(h)(3). Plaintiff is warned that the future filing of frequent
frivolous lawsuits may result in the imposition of sanctions, including the issuance of a filing
injunction. 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 pauper is status is denied for purpose of an appeal. .
SO ORDERED.

/S/ Judge William F. Kuntz, II
WILLIAMp-:

Dated: Brooklyn, New York
April p~2015

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