May v. DeBlasio

Filing 7

ORDER DISMISSING CASE: For the reasons stated in the attached memorandum and order, the complaint is dismissed for failure to state a claim on which relief may be granted and for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1915( e)(2)(B) and Fed. R. Civ. P. 12(h)(3). 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 the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to enter judgment and close this case accordingly. Ordered by Judge Pamela K. Chen on 2/28/2017. (Chivers, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JUDITH MAY,

NOT FOR PUBLICATION
Plaintiff,

MEMORANDUM AND ORDER

-against-

17-CV-761 (PKC)(LB)

MAYOR OF NEW YORK CITY, BILL de BLASIO,
Defendant.
--------------------------------------------------------------X
PAMELA K. CHEN, United States District Judge:
On February 7, 2017, the Court received a pro se submission from Judith May purporting
to be a “Criminal Complaint” against Bill de Blasio, the Mayor of New York City. May’s
application to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915. For the reasons
that follow, the complaint is dismissed.
BACKGROUND
Plaintiff’s submission is entitled “Criminal Complaint,” and alleges that Mayor de Blasio,
“a member of organized crime – the Mafia,” gave jobs in the New York State court system to
individuals “with no education or experience as clerks of the court” because they too are
“member[s] of organized crime – the Mafia.” (Compl. at 1.) It further alleges that “clerks hide
files, submit false trial transcripts, write letters and sign the chief clerks [sic.] name to the letters.”
(Id.) In support of these claims, May alleges that she “has had many negative experiences” with
the New York State court system, including clerks refusing to tell May where files were located,
adverse rulings by judges (which May alleges were “forged” by the clerks), missing transcripts,
and prolonged delays in the adjudication of legal proceedings. (Compl. at 2-3.) She attaches
copies of correspondence with Paul Kenny, Chief Clerk of the Appellate Term of the Supreme

Court of the State of New York. The correspondence purports to document May’s efforts to obtain
an expedited appeal of legal proceedings in New York state court.
May also asserts in her “Criminal Complaint” that “Plaintiff had a trip and fall accident in
2011 against the City of New York”, and that the City’s lawyers “are members of organized
crime.” (Compl. at 4.)
May seeks as relief to “have her cases heard in a court of law, promptly,” and also seeks
damages in each of these cases, which she does not identify. (Id.) In addition, Plaintiff seeks
$1,000,000 in punitive damages “or whatever the court deems fair and just.” (Id.)
STANDARD OF REVIEW
“A document filed pro se is to be liberally construed, and a pro se 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). However, pursuant to the in forma pauperis statute, a district court must dismiss a case
if the court determines that the complaint “is frivolous or malicious; fails to state a claim on which
relief may be granted; or seeks monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). 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). Although “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 555). Similarly, a

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complaint is insufficient to state a claim “if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Moreover, a plaintiff seeking to bring a lawsuit in federal court must establish that the
court has subject matter jurisdiction over the action. 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);
accord Yong Qin Luo v. Mikel, 625 F.3d 772, 775 (2d Cir. 2010). 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)).
DISCUSSION
I.

Plaintiff Cannot Prosecute a Criminal Action
Plaintiff’s complaint is labeled a “criminal complaint.” However, private citizens like May

do not have the power to prosecute alleged crimes. The decision to prosecute a person for an
alleged violation of a federal criminal statute is left to the discretion of the federal law enforcement
agencies, such as the United States Attorney’s Office. See United States v. Armstrong, 517 U.S.
456, 464 (1996) (the decision whether or not to prosecute, and what charge to file or bring before
a grand jury rests entirely in the prosecutor’s discretion); Leeke v. Timmerman, 454 U.S. 83, 85
(1981) (a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution
of another). Furthermore, this Court may not compel the prosecuting authorities to commence an

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investigation or prosecution of Mayor de Blasio or any other individual. Fields v. Soloff, 920 F.2d
1114, 1118 (2d Cir. 1990).
II.

The Court Construes Plaintiff’s Filing as a Civil Complaint
In light of May’s status as a pro se litigant, the Court construes the complaint as a civil

complaint seeking money damages.

However, the Court finds no basis for subject matter

jurisdiction over May’s claims. She has not asserted the violation of any provision of the United
States Criminal Code that includes an express or implied private right of action. See Cort v. Ash,
422 U.S. 66, 79 (1975) (no private right of action exists under criminal statutes unless there is a
clear statutory basis for such an inference). Nor has she alleged that the named defendant, Mayor
de Blasio, is directly responsible for any violation of her constitutional rights under 42 U.S.C.
§ 1983. As May presents no other basis for federal jurisdiction over her claims, the complaint
must be dismissed for lack of subject matter jurisdiction.
The Court also finds that May has failed to state a plausible claim for relief. Read in the
light most favorable to May, the complaint appears to accuse certain clerks and judges in the New
York State court system of failing to promptly and fairly adjudicate various lawsuits because,
according to the complaint, they are “member[s] of organized crime – the Mafia.” The complaint
does not plead any facts to suggest that May’s experience in the New York State court system is
the result of anything more than the ordinary, lawful functioning of that system. Indeed, other than
the assertion that Mayor de Blasio and certain unspecified clerks are “members of organized crime
– the Mafia,” the complaint does not identify any basis from which this Court can infer a violation
of May’s rights—let alone a violation that could be remedied in federal court. Thus, Plaintiff’s
complaint also must be dismissed for failing to state a claim.

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CONCLUSION
For the reasons set forth above, the complaint is dismissed for failure to state a claim on
which relief may be granted and for lack of subject matter jurisdiction pursuant to
28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3).

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 the purpose of any appeal. Coppedge v. United States, 369 U.S.
438, 444-45 (1962). The Clerk of Court is respectfully directed to enter judgment and close this
case accordingly.
SO ORDERED.

/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: Brooklyn, New York
February 28, 2017

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