White v. Abney et al

Filing 28

MEMORANDUM & ORDER: The Court grants Plaintiff's 17 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 for the purpose of this Memorandum and Order. The Court dismisses the Complaint but grants Plaintiff le ave to file an amended complaint within thirty (30) days of the date of this Memorandum and Order to file an amended complaint. Plaintiff's 24 motion for an extension of time to serve Defendants Albert and Ella Abney and his motion for a de fault judgment are denied. No additional summonses shall issue at this time, and all further proceedings shall be stayed for thirty days. 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. SO ORDERED by Judge Margo K. Brodie, on 3/21/2019. (Copy of this Order and the attached copies of all unreported cases cited herein sent to pro se Plaintiff.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------PAUL WHITE,

NOT FOR PUBLICATION
Plaintiff,
v.

MEMORANDUM & ORDER
17-CV-4286 (MKB)

ALBERT ABNEY, ELLA ABNEY, TEODOCIA
SANTOS, SANDRA SCHMIDT, JOHN CLINE
RESERVOIR I LLC, JOHN CLINE RESERVOIR II
LLC, JOHN CLINE RESERVOIR III LLC, JOHN
CLINE RESERVOIR IV LLC, JOHN CLINE
RESERVOIR V LLC, JOHN CLINE RESERVOIR
VI LLC, JOHN CLINE RESERVOIR VII LLC,
JOHN CLINE RESERVOIR VIII LLC, JOHN
CLINE RESERVOIR IX LLC, and JOHN DOES 1–
20,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Paul White, proceeding pro se and currently incarcerated at Five Points
Correctional Facility, commenced the above-captioned action on July 19, 2017, alleging, inter
alia, civil claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), civil
conspiracy, false arrest, false imprisonment, malicious prosecution, tortious interference with a
business relationship, and fraud. (See generally Compl., Docket Entry No. 1.)1 The Court grants

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On July 19, 2017, Plaintiff filed his Complaint with the Court and paid the $400 filing fee.
(Compl.) The Court issued summonses and, with the use of a process server, Plaintiff served all
Defendants except Albert and Ella Abney. By letter dated March 26, 2018, Plaintiff requested
permission to proceed in forma pauperis in order to have the United States Marshal Service
serve the remaining Defendants. On April 20, 2018, Magistrate Judge Ramon E. Reyes directed
Plaintiff to re-file his Complaint, which was missing several pages. (Order dated. Apr. 20, 2018,
Docket Entry No. 20.) On May 4, 2018, Plaintiff re-filed the Complaint. (Compl., Docket Entry
No. 21). The Complaint filed on May 4, 2018 is the operative Complaint.

Plaintiff’s request to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 for the
purpose of this Memorandum and Order. For the reasons discussed below, the Court dismisses
the Complaint but grants Plaintiff leave to file an amended complaint within thirty (30) days of
the date of this Memorandum and Order.
I.

Background
After a jury trial in the New York State Supreme Court, Nassau County, Plaintiff was

convicted of grand larceny and a scheme to defraud, sentenced to twenty-one to sixty-three years
in prison, and ordered to pay almost $3 million in restitution. See Spota v. White, 48 N.Y.S.3d
268 (N.Y. Sup. Ct. 2016); see also (Compl. ¶ 365). The 256-page Complaint contains
allegations concerning the role Defendants played in Plaintiff’s criminal prosecution. (See
generally Compl.).
Plaintiff asserts that Defendants conspired “to commit an unlawful act of having . . .
Plaintiff arrested and unjustly convicted.”2 (See id. ¶¶ 369, 375, 381.) In support of his claim,
Plaintiff alleges that Defendants provided false testimony during the grand jury proceedings and
trial in his criminal case. (See, e.g., id. ¶ 364.) Plaintiff contends that as a result of Defendants’
actions, he has lost his “professional license to practice real estate,” his notary public license, his
good credit rating, and has been deprived of his right to continue the development of property
located “on Delight Road, Lawndale, North Carolina.” (Id. ¶¶ 1(N), 384.).
Plaintiff asserts that the Court has diversity jurisdiction over this action pursuant to 28
U.S.C. § 1332. Plaintiff alleges that he is a New York resident and that all Defendants are outof-state residents. (See Compl. ¶ 1.) In addition, Plaintiff seeks to invoke the Court’s federal

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Plaintiff states that he was convicted of “grand larceny” and “scheme to defraud” in the
first degree. (Id. ¶ 365.)
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question jurisdiction by attempting to plead claims pursuant to RICO and 42 U.S.C. §§ 1983 and
1985. Plaintiff seeks monetary damages in excess of $614 million.
II. Discussion
a.

Standard of review

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 is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court
determines it “(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.”
28 U.S.C. § 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
Moreover, even if a plaintiff pays the Court’s filing fee, a district court may dismiss the
case, sua sponte, if it determines that the court lacks subject matter jurisdiction, or the action is
frivolous. Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363–64 (2d Cir.
2000) (“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff

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has paid the required filing fee.”); see also Hawkins–El III v. AIG Federal Savings Bank, 334 F.
App’x 394, 395 (2d Cir. 2009) (affirming district court’s sua sponte dismissal of a fee-paid
frivolous complaint).
b.

The Court lacks diversity jurisdiction

Although Plaintiff invokes the Court’s diversity jurisdiction, complete diversity is
lacking.
Federal courts are courts of limited jurisdiction and may not hear cases if they lack
subject matter jurisdiction over the issues presented. Lyndonville Sav. Bank & Trust Co. v.
Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000). The statutory provisions for federal subject matter
jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332.
Under the diversity jurisdiction statute, federal courts have subject matter jurisdiction
over state law claims when the plaintiff and defendant are of diverse citizenship and “the matter
in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C.
§ 1332(a); see also Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692
F.3d 42, 48 (2d Cir. 2012). For a federal court to exercise subject matter jurisdiction based on
diversity, there must be complete diversity of citizenship between all plaintiffs and all
defendants. Bartlett v. Honeywell Int’l Inc., 737 F. App’x 543, 547 (2d Cir. 2018) (“Diversity
jurisdiction is present when there is complete diversity between the parties . . . .” (citing 28
U.S.C. § 1332(a))); Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 117–
18 (2d Cir. 2014) (“Subject matter jurisdiction is based on 28 U.S.C. § 1332, which requires
‘complete diversity,’ i.e. all plaintiffs must be citizens of states diverse from those of all
defendants.”). In order for a court to have jurisdiction, diversity of citizenship need only exist at
the time the action is commenced. Dukes ex rel. Dukes v. N.Y.C. Emps.’ Ret. Sys., & Bd. of

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Trustees, 581 F. App’x 81, 82 (2d Cir. 2014) (first citing 28 U.S.C. § 1332(a); and then citing
Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998)). The party asserting diversity
jurisdiction bears the burden of proving that it exists by a preponderance of the evidence.
Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v.
Bure, 290 F.3d 493, 497 (2d Cir. 2002)).
“For diversity purposes, a corporation is considered a citizen of the state in which it is
incorporated and the state of its principal place of business.” Bayerische, 692 F.3d at 48 (citing
28 U.S.C. § 1332(c)(1)); see also Hertz Corp. v. Friend, 559 U.S. 77, 92–93 (2010) (holding that
“‘principal place of business’ is best read as referring to the place where a corporation’s officers
direct, control, and coordinate the corporation’s activities”); Carbotrade S.p.A. v. Bureau
Veritas, 99 F.3d 86, 91 n.2 (2d Cir. 1996) (“In actuality, a corporation does not have domicile
but instead has citizenship.” (citation omitted)). A limited liability company “takes the
citizenship of each of its members.” Bayerische, 692 F.3d at 49; Carter v. HealthPort Techs.,
LLC, 822 F.3d 47, 60 (2d Cir. 2016) (“In general, the citizenship of a limited liability company is
determined by the citizenship of each of its members.”).
In contrast, “a party’s citizenship depends on his domicile.” Davis v. Cannick, 691 F.
App’x 673, 673 (2d Cir. 2017) (citing Linardos, 157 F.3d at 948). Domicile is originally
acquired at birth, Linardos, 157 F.3d at 948 (citing Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 48 (1989)), and is “the place where a person has his true fixed home and
principal establishment, and to which, whenever he is absent, he has the intention of returning,”
d’Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd., 886 F.3d 216, 226 n.8 (2d Cir. 2018) (quoting
Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000)). Consequently, residence
alone is not determinative of domicile or citizenship. See Caren v. Collins, 689 F. App’x 75, 75

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(2d Cir. 2017) (“Although the individual plaintiff and the individual defendants are alleged to be
residents of certain States, such an allegation is insufficient to plead citizenship.” (citations
omitted)); New Canaan Capital Mgmt., LLC v. Ozado Partners LLC, No. 16-CV-1395, 2017 WL
1157153, at *4 (S.D.N.Y. Mar. 25, 2017) (“Domicile is not synonymous with residence; a party
can reside in one place and be domiciled in another.”) (quoting Kennedy v. Trs. of Testamentary
Tr. of Will of Kennedy, 633 F. Supp. 2d 77, 81 (S.D.N.Y. 2009)). Moreover, “one may have
more than one residence in different parts of this country or the world, but a person may
have only one domicile.” Reich v. Lopez, 858 F.3d 55, 63 (2d Cir. 2017) (quoting United States
v. Venturella, 391 F.3d 120, 125 (2d Cir. 2004)), cert. denied, 138 S. Ct. 282 (2017).
The Court lacks diversity jurisdiction because both Plaintiff and Santos are domiciled in
New York. Based on Plaintiff’s New York address and his claim of New York residency,
(Compl. 2), it appears that he is a resident of New York, and there is no indication in the
Complaint that he is domiciled elsewhere. In addition, although Plaintiff alleges in the
Complaint that Santos is domiciled in Las Vegas, Nevada, the returned summons indicates that
Santos is a resident of Bellport, New York. (Summons Returned 3, Docket Entry No. 7.) The
Court therefore lacks diversity jurisdiction. See 28 U.S.C. § 1332; Pa. Pub. Sch. Emps.’ Ret.
Sys., 772 F.3d at 117–18 (stating that jurisdiction based on 28 U.S.C. § 1332 requires “‘complete
diversity,’ i.e. all plaintiffs must be citizens of states diverse from those of all defendants”
(citation omitted)); Lovejoy v. Watson, 475 F. App’x 792, 792 (2d Cir. 2012) (“The complaint
alleged that [the plaintiff] and the defendant resided in New York, thereby precluding diversity
jurisdiction.”).
Moreover, because Plaintiff alleges that Santos is the managing member of Defendant
John Cline Reservoir II LLC, the Court also lacks diversity jurisdiction because Defendant John

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Cline Reservoir II LLC takes Santos’ citizenship, and therefore is a citizen of New York. See
Bayerische, 692 F.3d at 49 (“[A] limited liability company . . . takes the citizenship of each of
its members.”).
c.

The Court lacks federal question jurisdiction

The Court construes Plaintiff’s allegations as asserting claims under RICO, section 1983
for false arrest, false imprisonment, and malicious prosecution, as well as civil conspiracy under
sections 1983 and 1985.
Federal question jurisdiction provides federal courts jurisdiction over “all civil actions
arising under the Constitution, laws, or treaties of the United States.” Bounds v. Pine Belt
Mental Health Care Res., 593 F.3d 209, 215 (2d Cir. 2010) (quoting 28 U.S.C. § 1331). “A
plaintiff properly invokes section 1331 jurisdiction when she pleads a colorable claim ‘arising
under’ the Federal Constitution or laws.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006).
i.

Plaintiff fails to state a RICO claim

While Plaintiff attempts to invoke RICO as a source of federal jurisdiction, the attempt is
“patently without merit” because Plaintiff does not allege any facts to support a RICO claim.
To establish a RICO claim, a plaintiff must plead “‘(1) conduct, (2) of an enterprise, (3)
through a pattern (4) of racketeering activity,’ as well as ‘injury to business or property as a
result of the RICO violation.’” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106,
119 (2d Cir. 2013) (quoting Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir.
1999)); see also Williams v. Affinion Grp., LLC, 889 F.3d 116, 123–24 (2d Cir. 2018) (“To
sustain a RICO claim under 18 U.S.C. § 1962(c), a plaintiff must show ‘(1) that the defendant (2)
through the commission of two or more acts (3) constituting a “pattern” (4) of “racketeering
activity” (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an

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“enterprise” (7) the activities of which affect interstate or foreign commerce.’” (quoting Moss v.
Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983))).
Plaintiff only makes conclusory allegations that Defendants “through a pattern of
racketeering activity” caused Plaintiff harm. (Compl. ¶ 721.) These conclusory allegations are
insufficient to state a RICO claim. Jackson v. Cty. of Rockland, 450 F. App’x 15, 19 (2d Cir.
2011) (dismissing the plaintiff’s conspiracy claim under RICO because it was based on
conclusory, vague, and general allegations).
ii.

Plaintiff fails to state section 1983 claims

In addition, to the extent Plaintiff attempts to raise claims pursuant to section 1983, those
claims are similarly without merit because he does not allege that any of the Defendants acted
under color of state law.
Under section 1983, individuals may bring a private cause of action against persons
“acting under color of state law” to recover money damages for deprivations of their federal or
constitutional rights. Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 55 (2d Cir. 2014) (quoting
42 U.S.C. § 1983). To establish a viable section 1983 claim, a plaintiff must show “the violation
of a right secured by the Constitution and laws of the United States” and that “the alleged
deprivation was committed by a person acting under color of state law.”3 Vega v. Hempstead

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A private individual can be found to have acted under the color of law if the private
actor “is a willful participant in joint activity with the State or its agents.” Ciambriello v. Cty. of
Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (citations omitted); see also Amid v. Chase, 720 F.
App’x 6, 11 (2d Cir. 2017) (“A plaintiff can demonstrate that a private [actor] . . . act[ed]
under color of state law . . . by demonstrating that the State compelled the [actor’s] conduct . . .
by demonstrating that there is a sufficiently close nexus between the State and the [actor’s]
conduct” . . . or (3) by demonstrating that the [actor’s] conduct consisted of activity that has
traditionally been the exclusive prerogative of the State . . . (citations and internal quotation
marks omitted)); Hogan v. A.O. Fox Memorial Hosp., 346 F. App’x 627, 628 (2d Cir. 2009)
(same). “It is not enough, however, for a plaintiff to plead state involvement in ‘some activity of
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Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d Cir. 2015) (citations and internal quotation marks
omitted); see also Williams v. Long Beach Mortg. Co., No. 15-CV-5952, 2016 WL 5720810, at
*8 (S.D.N.Y. Sept. 30, 2016) (finding the court lacked subject matter jurisdiction because the
plaintiff’s section 1983 claims were “patently meritless”), aff’d, 709 F. App’x 92 (2d Cir. 2018).
In addition, Plaintiff has not alleged sufficient factual allegations in support of his false arrest /
imprisonment or his malicious prosecution claim.
False arrest
In addressing a section 1983 claim for false arrest, courts look to “the law of the state in
which the arrest occurred” to determine if the officers had probable cause to arrest the plaintiff
for a violation of state law. Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006); see also
Ackerson v. City of White Plains, 702 F.3d 15, 19–21 (2d Cir. 2012) (analyzing whether the
plaintiff’s actions gave a police officer probable cause to arrest the plaintiff for violating state
law). To establish a section 1983 claim for false arrest under New York law, the plaintiff must
adduce evidence that (1) the defendant intended to confine him, (2) the plaintiff was conscious of
the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement
the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege
that the state was involved ‘with the activity that caused the injury’ giving rise to the action.”
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 258 (2d Cir. 2008) (emphasis
and citations omitted). In order to satisfy the joint activity requirement, there needs to be
something more than an allegation that the private party supplied information, even false
information, to the police. See Stewart v. Victoria’s Secret Stores, LLC, 851 F. Supp. 2d 442,
446 (E.D.N.Y. 2012) (“A private party supplying information or seeking police assistance ‘does
not become a state actor . . . unless the police officers were improperly influenced or controlled
by the private party.’” (alteration in original) (citations omitted)); Baez v. JetBlue Airways, 745
F. Supp. 2d 214, 221 (E.D.N.Y. 2010) (holding that one incident of providing false information
was not sufficient to make a private party an actor under the color of law); Castro v. Cty. of
Nassau, 739 F. Supp. 2d 153, 173 (E.D.N.Y. 2010) (“[T]he provision of information to or
summoning of police officers, even if that information is false or results in the officers taking
affirmative action, is not sufficient to constitute joint action with state actors for purposes of §
1983.”).
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was not otherwise privileged. Berg v. Kelly, 897 F.3d 99, 106 (2d Cir. 2018) (citing Jocks v.
Tavernier, 316 F.3d 128, 135 (2d Cir. 2003)).
A law enforcement official violates the Fourth Amendment’s protections if he or she
arrests someone without probable cause. Id. Conversely, “probable cause is an absolute defense
to a false arrest claim.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (quoting Torraco
v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010)). “A police officer has probable
cause for an arrest when he has ‘knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable caution in the belief that the
person to be arrested has committed or is committing a crime . . . .’” Swartz v. Insogna, 704 F.3d
105, 111 (2d Cir. 2013) (quoting Weyant, 101 F.3d at 852); see also Gonzalez, 728 F.3d at 155.
Plaintiff alleges that Defendants “utter[ed]” and “furnish[ed] . . . misrepresentations of
existing fact” to the grand jury and “initiated the prosecution against [the plaintiff] based upon
false information.” (Compl. ¶ 580.) However, Plaintiff’s conviction “necessarily establishes
probable cause for both the arrest and the ensuing prosecution.” See Corsini v. Brodsky, 731 F.
App’x 15, 18 (2d Cir. 2018); see also Cameron v. Fogarty, 806 F.2d 380, 388–89 (2d Cir. 1986)
(holding that conviction establishes probable cause for arrest).
Malicious prosecution
Under New York law, the elements of a malicious prosecution claim are “(1) the
initiation or continuation of a criminal proceeding against plaintiff, (2) termination of the
proceeding in plaintiff’s favor, (3) lack of probable cause for commencing the proceeding, and
(4) actual malice as a motivation for defendant’s actions.” Willey v. Kirkpatrick, 801 F.3d 51, 70
(2d Cir. 2015) (internal quotation marks omitted) (quoting Manganiello v. City of New York, 612
F.3d 149, 161 (2d Cir. 2010)); see Bermudez v. City of New York, 790 F.3d 368, 377 (2d Cir.

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2015) (stating the elements of a malicious prosecution claim under New York law); Cameron v.
City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (same). In a claim for malicious prosecution
under section 1983, “the plaintiff must also show ‘that there was . . . a sufficient postarraignment liberty restraint to implicate the plaintiff’s Fourth Amendment rights.’”
Higginbotham v. City of New York, 105 F. Supp. 3d 369, 375 (S.D.N.Y. 2015) (quoting Rohman
v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)).
“An acquittal is the most obvious example of a favorable termination.” Russell v. Smith,
68 F.3d 33, 36 (2d Cir. 1995). Absent an acquittal, the favorable termination element of a
malicious prosecution claim requires plaintiff to demonstrate “that the underlying criminal
proceeding ended in a manner that affirmatively indicates his innocence.” Lanning v. City of
Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018). Because Plaintiff was convicted after trial, he fails
to allege that the underlying criminal proceeding terminated in his favor. See Mitchell v. City of
New York, 841 F.3d 72, 79 (2d Cir. 2016) (holding that favorable termination is required to
support malicious prosecution claim). Further, as with Plaintiff’s false arrest claim, probable
cause is a complete defense to a malicious prosecution claim. See Boyler v. City of Lackawanna,
--- F. App’x ---, ---, 2019 WL 1168524, at *2 (2d Cir. Mar. 13, 2019) (stating that probable cause
is a complete defense to malicious prosecution claims under section 1983); Mitchell, 841 F.3d at
79 (same).
In addition, to the extent Plaintiff alleges that Defendants violated his constitutional
rights by testifying falsely before a grand jury, the allegations fail to state a claim. See Rehberg v
Paulk, 566 U.S. 356, 369 (2012) (concluding that grand jury witnesses should enjoy the same
immunity as trial witnesses under section 1983); Coggins v. Buonora, 776 F.3d 108, 112–13 (2d
Cir. 2015) (stating that if the plaintiff’s “claim requires the grand jury testimony, the defendant

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enjoys absolute immunity under Rehberg”); Morales v. City of New York, 752 F.3d 234, 237 (2d
Cir. 2014) (recognizing that Rehberg applies to provide absolute immunity to grand jury
witnesses in section 1983 actions); Peterson v. Regina, 935 F. Supp. 2d 628, 643 (S.D.N.Y.
2013) (holding that a malicious prosecution claim based exclusively on the allegation that the
defendants lied before the grand jury would fail due to absolute immunity).
Civil conspiracy
In support of his civil conspiracy claim, Plaintiff alleges that Defendants provided false
testimony during grand jury proceedings, thereby depriving him of his liberty. (Compl. 10–11.)
To state a claim for conspiracy under section 1983, a “plaintiff must plausibly allege (1)
an agreement between a state actor and a private party (2) to act in concert to inflict
unconstitutional injury, and (3) an overt act furthering that goal and causing damages.” See
Corsini, 731 F. App’x at 19 (citing Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324–25 (2d Cir.
2002)).
To state a claim for conspiracy to interfere with civil rights under section 1985, a plaintiff
must allege (1) a conspiracy, (2) with the intent or purpose to deprive a person of equal
protection of the law, (3) an act in furtherance of the conspiracy, (4) which results in an injury to
a person, or a person’s property, or the deprivation of a federal constitutional right. Sheehy v.
Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (citing Mian v. Donaldson, Lufkin & Jenrette Sec.
Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)). “In order to maintain an action under [s]ection 1985, a
plaintiff ‘must provide some factual basis supporting a meeting of the minds, such that [the]
defendants entered into an agreement, express or tacit, to achieve the unlawful end.’” Webb v.
Goord, 340 F.3d 105, 110 (2d Cir. 2003) (citation omitted). In addition, a plaintiff must allege
that he is a member of a protected class and that the conspirators acted with class-based

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discriminatory motivation. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Britt v. Garcia,
457 F.3d 264, 270 n.4 (2d Cir. 2006); Ali v. Connick, 136 F. Supp. 3d 270, 277 (E.D.N.Y. 2015).
Plaintiff alleges a conspiracy among Defendants to have him arrested based on false
information. (Compl. ¶ 369.) However, Plaintiff has not alleged any facts to support a meeting
of the minds, and the existing allegations are insufficient to support a claim sounding in
conspiracy under section 1983. See Corsini, 731 F. App’x at 18 (affirming dismissal of
plaintiff’s section 1983 conspiracy claim because the plaintiff made only threadbare recitals of
the elements of the claim); Bukowski v. Spinner, 709 F. App’x 87, 89 (2d Cir. 2018) (dismissing
the plaintiff’s section 1983 conspiracy claim because “oblique reference to those private actors
conspiring with [the defendant] to deprive her of her child is fatally conclusory or otherwise
unsupported”); Arredondo v. Cty. of Nassau, No. 11-CV-710, 2012 WL 910077, at *6
(E.D.N.Y. Mar. 16, 2012) (dismissing complaint where the plaintiff had only made general
allegations that the defendants had an understanding without any facts to support the claim).
In addition, as to any section 1985 conspiracy claim, Plaintiff has not plausibly alleged
that Defendants acted with discriminatory motivation, as is required under section 1985. See
Mian, 7 F.3d at 1087 (“Furthermore, the conspiracy must also be motivated ‘by some racial or
perhaps otherwise class-based, invidious discriminatory animus behind the conspirators’
action.’” (quoting United Bhd. Of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828–29
(1983))).
Accordingly, Plaintiff’s civil RICO claim, as well as his section 1983 claims for false
arrest/imprisonment, malicious prosecution, and civil conspiracy claims under sections 1983 and
1985 are “patently without merit” and do not invoke the Court’s subject matter jurisdiction.

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d.

Plaintiff’s claims for tortious interference with a business relationship and
fraud

Because the Court lacks subject matter jurisdiction over Plaintiff’s federal claims and
Plaintiff fails to allege complete diversity to invoke the Court’s diversity jurisdiction, the Court
has no original jurisdiction in this case and, therefore, cannot exercise supplemental jurisdiction
over Plaintiff’s state law claims. See Cohen v. Postal Holdings, LLC, 873 F.3d 394, 399 (2d Cir.
2017) (“[A] district court cannot exercise supplemental jurisdiction unless there is first a proper
basis for original federal jurisdiction.” (internal citation omitted)). Accordingly, the Court
dismisses Plaintiff’s claims for tortious interference with a business relationship and fraud
without prejudice.
e.

Leave to amend

The Court grants Plaintiff thirty (30) days from the date of this Memorandum and Order
to file an amended complaint. If Plaintiff decides to amend the Complaint, he must plead nonfrivolous allegations that would invoke the Court’s subject matter jurisdiction. Plaintiff may
include his state law tortious interference with a business relationship and fraud claims in any
amended complaint.
III. Conclusion
For the foregoing reasons, the Court dismisses the Complaint.4 Plaintiff’s motion for an
extension of time to serve Defendants Albert and Ella Abney and his motion for a default

4

The Court notes that Plaintiff is currently serving a sentence for the crimes which form
the underlying basis for the instant action. He may not now seek to attack the underlying
criminal action by filing a meritless civil suit designed primarily to annoy and harass Defendants.
See Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (noting that a plaintiff may not “abuse
the process of the Courts to harass and annoy others with meritless, frivolous . . . proceedings.”).

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judgment are denied.5
No additional summonses shall issue at this time, and all further proceedings shall be
stayed for thirty days. 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. Coppedge v. United States, 369 U.S. 438, 444–
45 (1962).
Dated: March 21, 2019
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge

5

Plaintiff filed a Notice of Motion for Default Judgment on November 30, 2018.
(Notice of Mot. for Default J., Docket Entry No. 27.) However, the Clerk of Court has not
entered any certificates of default in this action.
15