Warren et al v. D.S.S. of N.Y. et al

Filing 6

ORDER: For the reasons in the attached, while the Court cannot envision that Plaintiff's claim against Defendants could be properly pled to establish subject matter jurisdiction, out of an abundance of caution, Plaintiff is directed to file a se cond amended complaint within 30 days of this order establishing subject matter jurisdiction. Furthermore, to the extent Plaintiff seeks to bring a claim of fraud against DSS and its employees for their conduct, the second amended complaint must, as explained in footnote 5 of the Memorandum and Order, (1) be only against the City of New York and (2) allege sufficient facts to state this claim with the requisite particularity. Moreover, to the extent that Plaintiff challenges the lien or Medica id claim on behalf of the Estate of Martha Mayes, Plaintiff must allege that he is "the administrator and sole beneficiary of an estate with no creditors ...." Naughton v. Naughton, No. 11-CV-2865, 2011 WL 370192, at * 2 (E.D.N.Y. Aug. 23, 2011). 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 the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 4/12/2017. (Lee, Helen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT L. WARREN,

NOT FOR PUBLICATION
Plaintiff,

-against-

MEMORANDUM & ORDER
17-CV-419 (PKC) (LB)

D.S.S. of N.Y., Agency Attorney MELISSA
WAGNER, Dept. of Social Services of New
York City,
Defendants.
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PAMELA K. CHEN, United States District Judge:
On January 18, 2017, Plaintiff Robert L. Warren, appearing pro se, filed this action against
two Defendants, the New York City Human Resources Administration, Department of Social
Services (“DSS”) and a DSS attorney, Melissa Wagner (“Wagner”). 1 (Compl., Dkt. 1.) On
February 2, 2017, Plaintiff filed an Amended Complaint. (Am. Compl., Dkt. 5.) Plaintiff seeks
$50 million in damages for “‘Estate Fraud’ Recovery,” alleging that Defendants filed a “false
Medicaid claim” under Plaintiff’s late mother’s name, and “collect[ed] on Multiple Liens that
turned automatically into Claims.” (Id. at 5.) The Court grants Plaintiff’s request to proceed in
forma pauperis solely for the purpose of this Order and directs Plaintiff to file a second amended
complaint within 30 days of this Order.

“Under the New York City Charter, [the New York City Human Resources
Administration] (referred to in the Charter as the Department of Social Services) is the mayoral
agency charged with upholding the City’s responsibilities under the social services law. See NYC
Charter §§ 601–604.” Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 141 (2d Cir. 2004)
(citation and quotation marks omitted).
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BACKGROUND
Plaintiff is the son of decedent Martha Mayes (“Mayes”). (Am. Compl. at 5.) Plaintiff
specifically alleges that Defendants filed a “false Medicaid claim on July 12, 2011” and that they
“knowingly, intentionally and recklessly collected ([$]300,000) on (8/24/2014) from [his] late
mother’s (Martha P. Mayes) Estate.” (Am. Compl. at 5.) Based on exhibits Plaintiff attached to
the Amended Complaint, the Court infers that Mayes obtained a $1.2 million settlement from what
appears to be a private suit (id. at Exhibit 1C, Dkt. 5-1 at ECF 5), 2 and that she was also subject to
a lien based on her receipt of Medicaid benefits from September 23, 2001, through April 21, 2008.
(Id. at Exhibit 1A, Dkt. 5-1 at ECF 1-2.) DSS, through its attorney Wagner, has filed a claim with
the Surrogate’s Court of the State of New York against the Estate of Martha Mayes. 3 (See Am.
Compl., Exhibit 1A Dkt. 5-1.)
STANDARD OF REVIEW
Although courts must read pro se complaints with “special solicitude” and interpret them
to raise the “strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474–76 (2d Cir. 2006) (per curiam) (quotations omitted), 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 has facial plausibility 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) (citation omitted). While “detailed factual
allegations” are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at

The Court refers to the page numbers generated by the court’s Electronic Case Filing
(“ECF”) system, and not the document’s internal pagination.
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Plaintiff does not provide the status of the proceedings in the Surrogate’s Court.
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555). Similarly, a complaint fails to state a claim “if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Further, under 28 U.S.C.
§ 1915(e)(2)(B), district courts shall dismiss an in forma pauperis complaint action that “(i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Finally, if the Court “determines at any time that it lacks subject-matter jurisdiction, the Court
must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
DISCUSSION
I.

Subject Matter Jurisdiction
In an individual civil action, federal subject matter jurisdiction is available when a “federal

question” is presented, 28 U.S.C. § 1331, or when the plaintiff and defendants have complete
diversity of citizenship and the amount in controversy exceeds $75,000, 28 U.S.C. § 1332. Federal
question jurisdiction may be properly invoked only if the plaintiff’s complaint “plead[s] a cause
of action created by federal law” or “turn[s] on substantial questions of federal law.” New York ex
rel. Jacobson v. Wells Fargo Nat’l Bank, N.A., 824 F.3d 308, 315 (2d Cir. 2016) (quoting Grable
& Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005)).
Here, there is neither federal question nor diversity jurisdiction. Plaintiff’s Amended
Complaint, which only alleges a claim of fraud, does not plead a cause of action created by federal
law, nor does the claim turn on substantial questions of federal law. 4 “‘The party invoking federal

Plaintiff incorrectly states in his Amended Complaint that the basis for federal jurisdiction
for his fraud claim is federal question. (See Am. Compl. at 4 (asserting that there is a basis for
jurisdiction under federal question given “[t]he Code of Federal Regulations Binded [sic] by the
U.S. Federal Statute Under What Federal Medicaid Law Provisions [sic] was my late mother
(Martha P. Mayes) Protected Under.”) However, Plaintiff’s claim is simply a claim of fraud. “The
mere mention of a federal statute in a Complaint does not establish that federal law creates a cause
of action.” Ohio v. Jones, No. 5:12–CV–01134, 2012 WL 2412153, at *2 (N.D. Ohio Jun. 26,
2012) (holding that the district court lacked federal question jurisdiction where plaintiff brought a
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jurisdiction bears the burden of establishing’ that jurisdiction exists.” Sharkey v. Quarantillo, 541
F.3d 75, 82 (2d Cir. 2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
According to the Amended Complaint, Plaintiff resides in Jamaica, New York. (Am. Compl. at
2.) One Defendant is a New York City agency and the other is an employee of that agency. (Id.)
Because complete diversity among parties is lacking, there is no basis for diversity jurisdiction.
See Greenidge v. NYCHA New York City Hous. Auth., No. 15–CV–1366, 2015 WL 5518481, at
*5 (E.D.N.Y. Sept. 16, 2015) (finding no basis for diversity jurisdiction where plaintiff who lived
in Brooklyn sued a New York City agency).
Because Plaintiff’s pleading does not suggest any possible basis for federal-question
jurisdiction or diversity jurisdiction, this Court does not have subject matter jurisdiction over his
claim against Defendants. 5
II.

Plaintiff, a Non-Attorney, Cannot Represent the Interest of His Late Mother or the
Estate.
Even if the Court had jurisdiction over Plaintiff’s claim, he might not be able to represent

the interest of his mother’s Estate. While “parties may plead and conduct their own cases
personally,” 28 U.S.C. §1654, “unlicensed laymen [are not allowed] to represent anyone else other

suit against the fiduciary of the estate of a prior Medicaid recipient seeking to collect on a Medicaid
claim).
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Even if the Court had jurisdiction over Plaintiff’s claim, his action would still have to be
dismissed because (1) he cannot sue DSS, see N.Y.C. Charter Ch. 17 § 396 (“All actions and
proceedings for the recovery of penalties for the violation of any law shall be brought in the name
of the city of New York and not in that of any agency, except where otherwise provided by law.”);
and (2) the Complaint does not satisfy the pleading standard that applies to fraud claims. See Fed.
Rule of Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”); Fin. Guar. Ins. Co. v. Putnam Advisory Co., 783
F.3d 395, 403 (2d Cir. 2015) (Rule 9(b) “requires that the plaintiff (1) detail the statements (or
omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and
when the statements (or omissions) were made, and (4) explain why the statements (or omissions)
are fraudulent.” (citation and internal quotation marks omitted)).
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than themselves.” Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (citation and internal
quotation marks omitted). “In the estate context . . . the Second Circuit has held that ‘the
administrator and sole beneficiary of an estate with no creditors may appear pro se on behalf of
the estate’ because this individual ‘is the only party affected by the disposition of the suit’ and
therefore is ‘in fact, appearing solely on his own behalf.’” Naughton v. Naughton, No. 11–CV–
2865, 2011 WL 3701972, at *2 (E.D.N.Y. Aug. 23, 2011) (quoting Guest v. Hansen, 603 F.3d 15,
21 (2d Cir. 2010)). However, “an administrator or executor of an estate may not proceed pro se
when the estate has beneficiaries or creditors other than the litigant.” Guest, 603 F.3d at 20
(alterations in the original omitted) (quoting Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir.
1997). In this case, Plaintiff has not alleged that he is the sole beneficiary of his mother’s Estate
or that the Estate has no creditors. Indeed, Plaintiff asserts that DSS has multiple liens against the
Estate, although it is unclear as to the status of DSS’s collection of its Medicaid liens. Therefore,
Plaintiff has not demonstrated that he may appear pro se to challenge DSS’s Medicaid lien against
his mother’s Estate.
CONCLUSION
While the Court cannot envision that Plaintiff’s claim against Defendants could be properly
pled to establish subject matter jurisdiction, out of an abundance of caution, Plaintiff is directed to
file a second amended complaint within 30 days of this order establishing subject matter
jurisdiction. Furthermore, to the extent Plaintiff seeks to bring a claim of fraud against DSS and
its employees for their conduct, the second amended complaint must, as explained in footnote 5,
(1) be only against the City of New York and (2) allege sufficient facts to state this claim with the
requisite particularity. Moreover, to the extent that Plaintiff challenges the lien or Medicaid claim
on behalf of the Estate of Martha Mayes, Plaintiff must allege that he is “the administrator and

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sole beneficiary of an estate with no creditors . . . .” Naughton, 2011 WL 370192, at *2.6 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 the purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: April 12, 2017
Brooklyn, New York

The Court notes that the original Complaint listed three plaintiffs, Kimberly Warren,
Robert L. Warren, and the Warren Family. (Compl.) However, the Amended Complaint listed
only Robert L. Warren as the Plaintiff. (Am. Compl.)
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