Banks v. First National Bank of Omaha

Filing 4

ORDER: I grant Banks's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 solely for the purpose of this Order. For the reasons stated in the attached Memorandum and Order, the complaint is hereby dismissed. I certify 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 the purpose of any appeal. Ordered by Judge John Gleeson on 9/26/2015. (Ross, Peter)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION ONLY

MARIE L. BANKS,
Plaintiff,
MEMORANDUM
AND ORDER

- versus -

15-CV-4135 (JG)(VMS)
BEDFORD STUYVESANT ARMY, S.S.,
and POSTAL SUPERVISOR & STAFF,
Defendants.
JOHN GLEESON, United States District Judge:
On July 13, 2015, plaintiff Marie L. Banks filed this in forma pauperis action pro
se seeking damages. I grant Banks’s request to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915 solely for the purpose of this Order. For the reasons set forth below, the complaint is
dismissed.
BACKGROUND
Although Banks’s complaint is hard to understand, the following facts can be
discerned. Banks deeply distrusts the superintendent of her building and believes that he is
responsible for the loss of various pieces of her property and for the fact that she is harassed by
the “Bedford Stuyvesant army” that is, according to her previous actions, her local police
precinct in Brooklyn. The instant lawsuit concerns the recent disappearance of some of her mail.
She believes that this is part of her community’s harassment of her and that either the
superintendent has taken her mail, which included important documents or, possibly, the United
States Postal Service “stole” her certified letter and other mail. She states, “Postal supervisor
stole several U.S. Government mail, send to me by certified mail, stole motor vehicule [sic]
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identification, credit card, SSI letter and have community to harass me telling: she is a drug
dealer on [sic] I.D. thief.” Compl. at 1, ECF No. 1. Banks complained to a postal supervisor in
Brooklyn on July 2, 2015, but she has not recovered the lost mail. Id. at 5-6. She seeks
damages.
DISCUSSION
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.” To avoid dismissal, a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim will be considered plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A court must construe a pro se litigant’s pleadings liberally, Erickson v. Pardus,
551 U.S. 89, 94 (2007), and a pro se complaint should not be dismissed without granting the
plaintiff leave to amend “at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated,” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795
(2d Cir. 1999) (internal quotation marks omitted). Nevertheless, “a pro se plaintiff must still
comply with the relevant rules of procedural and substantive law, including establishing that the
court has subject matter jurisdiction over the action.” Wilber v. U.S. Postal Serv., No. 10-CV3346 (ARR), 2010 WL 3036754, at *1 (E.D.N.Y. Aug. 2, 2010) (internal quotation marks and
citations omitted); Ally v. Sukkar, 128 F. App’x 194, 195 (2d Cir. 2005) (“Although we construe
a pro se plaintiff’s complaint liberally, a plaintiff attempting to bring a case in federal court must
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still comply with the relevant rules of procedural and substantive law, including establishing that
the court has subject matter jurisdiction over the action.” (citations omitted)).
An action is deemed frivolous as a matter of law when, inter alia, it “lacks an
arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.”
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations omitted). In
Denton v. Hernandez, the Supreme Court noted that:
the in forma pauperis statute, unlike Rule 12(b)(6) [of the Federal
Rules of Civil Procedure] “accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions are
clearly baseless.”
504 U.S. 25, 32 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). “[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.” Id. at 33. I find that Banks’s complaint lacks an arguable basis in law and is thus
frivolous. Moreover, her barely comprehensible allegations fail to state a claim on which relief
may be granted.
CONCLUSION
Accordingly, the pro se complaint is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) & (ii). I certify 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 the purpose of any
appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

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So Ordered.

John Gleeson, U.S.D.J.

Dated: September 26, 2015
Brooklyn, New York

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