Davis v. de Blasio et al
ORDER: For the reasons set forth in the attached Memorandum & Order, plaintiff's complaint is dismissed without prejudice for lack of subject matter jurisdiction due to plaintiff's lack of standing. See Fed. R. Civ. P. 12(h)(3); 28 U.S.C. 1915(e)(2)(B). 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 purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to enter judgment, close this case, send a copy of this Order and the judgment to plaintiff, and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 10/4/2021. (Tran, Alexander)
Case 1:21-cv-04853-KAM-LB Document 4 Filed 10/04/21 Page 1 of 6 PageID #: 29
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
TONI MARIE DAVIS,
MEMORANDUM AND ORDER
21-CV-4853 (KAM) (LB)
-againstMAYOR BILL DE BLASIO; CITY OF
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Toni Marie Davis, a resident of Baltimore,
Maryland, brings this pro se action pursuant to 28 U.S.C. §
1331, alleging that her constitutional rights have been violated
by New York City’s COVID-19 mask mandate.
(ECF No. 1, Complaint
Plaintiff’s request to proceed in forma pauperis
(“IFP”) is granted.
(ECF No. 2.)
For the reasons set forth
below, plaintiff’s claim is dismissed for lack of standing.
Plaintiff’s complaint contains many statements
reflecting her strong disagreement with the New York City COVID19 mask mandate, but fails to allege specific facts
demonstrating how the mandate violates plaintiff’s
(See generally Compl.)
plaintiff asserts that New York City Mayor Bill de Blasio “has
exercised Nazi style Tyrannical rule over the city of New York
including all 5 boroughs.”
(Id. at 3.)
She asserts that Mayor
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de Blasio “is using Covid as an excuse to infringe on the
liberties and sovereignty of the American people in an attempt
to ultimately take control.”
(Id. at 5.)
Plaintiff claims that
Mayor de Blasio’s actions will lead to forced vaccine mandates
which will lead to “civil war.”
(Id. at 6.)
questions how President Biden can restrict travel for Americans
due to the COVID-19 pandemic but use taxpayers money to evacuate
“30,000 unvaccinated covid having Afghans into this country.”
Plaintiff seeks fifteen billion dollars in punitive
damages “for the horrific acts against the freedoms of the
American people and the Will of God who said WHOM THE LORD SETS
FREE IS FREE INDEED.”
(Id. at 11 (emphasis in original)).
STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).
Bell Atl. Corp. v.
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
Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to legal
Iqbal, 556 U.S. at 678.
In reviewing a pro se
complaint, the court must be mindful that the plaintiff’s
Case 1:21-cv-04853-KAM-LB Document 4 Filed 10/04/21 Page 3 of 6 PageID #: 31
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 also Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (noting that even after Twombly, courts “remain
obligated to construe a pro se complaint liberally”).
In addition to requiring sufficient factual matter to
state a plausible claim to relief, pursuant to Rule 8 of the
Federal Rules of Civil Procedure, plaintiff must provide a
short, plain statement of claim against each defendant named so
that they have adequate notice of the claims against them.
Iqbal, 556 U.S. 678 (Rule 8 “demands more than an unadorned,
that only “tenders naked assertions devoid of further factual
enhancement” will not suffice.
Id. (internal citations and
To satisfy this standard, the complaint
must at a minimum “disclose sufficient information to permit the
defendant to have a fair understanding of what the plaintiff is
complaining about and to know whether there is a legal basis for
Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir.
2000) (internal quotation marks omitted).
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
Case 1:21-cv-04853-KAM-LB Document 4 Filed 10/04/21 Page 4 of 6 PageID #: 32
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
An action is “frivolous” when either: (1) “the
‘factual contentions are clearly baseless,’ such as when
allegations are the product of delusion or fantasy”; or (2) “the
claim is ‘based on an indisputably meritless legal theory.’”
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d
Cir. 1998) (internal citation omitted).
To bring suit in a federal court, a plaintiff must
establish that she has standing to pursue her claims under
Article III of the United States Constitution.
E.M. v. N.Y.C.
Dep’t of Educ., 758 F.3d 442, 449 (2d Cir. 2014).
irreducible constitutional minimum of standing’ derives from
Article III, Section 2 of the U.S. Constitution, which limits
federal judicial power to ‘cases’ and ‘controversies.’”
Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d 71,
79 (2d Cir. 2013) (quoting U.S. Const. art. III, § 2 and Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
that a case or controversy exists so as to confer standing under
Article III, a plaintiff must satisfy three elements: (a) the
plaintiff must suffer an ‘injury in fact,’ (b) that injury must
be ‘fairly traceable’ to the challenged action, and (c) the
injury must be likely to be ‘redressed by a favorable decision’
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of the federal court.”
Id. (citations omitted); see also
Hollingsworth v. Perry, 570 U.S. 693, 704 (2013) (“[F]or a
federal court to have authority under the Constitution to settle
a dispute, the party before it must seek a remedy for a personal
and tangible harm.”).
To have standing to bring a
constitutional claim, a plaintiff must show that she was
personally deprived of rights or privileges guaranteed by the
United States Constitution.
See Collins v. W. Hartford Police
Dep’t, 324 F. App’x 137, 139 (2d Cir. 2009) (summary order);
Cunningham v. U.S., No. 18-cv-4492, 2020 WL 6799685, at *2
(E.D.N.Y. Nov. 19, 2020).
Here, plaintiff, a resident of Maryland, has failed to
allege facts to show how she is personally affected by the New
York City mask mandate.
Furthermore, even if she had alleged
that she was personally deprived of her rights, her allegations
would not constitute an injury in fact that is concrete and
particularized to establish standing.
Any alleged harm is
speculative and hypothetical as plaintiff has not alleged an
Accordingly, because plaintiff fails to allege
any facts to show that she has personally suffered a
constitutional injury she lacks standing to bring this suit.
See e.g., Schiavo v. Carney, No. 20-cv-1384, 2021 WL 2936137, at
*3–4 (D. Del. July 13, 2021) (noting that there are no
allegations in the complaint of an injury personal to plaintiff
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as a result of the mask mandate); Beaudoin v. Baker, No. 20-cv11187, 2021 WL 1162927, at *4 (D. Mass. Mar. 25, 2021) (finding
plaintiff has no standing to challenge mask mandate); Bechade v.
Baker, No. 20-cv-11122, 2020 WL 5665554, at *3 (D. Mass. Sept.
23, 2020) (plaintiff who did not show mask requirement caused
any concrete and particularized or actual or imminent harm did
not have standing).
Plaintiff’s complaint is dismissed without prejudice
for lack of subject matter jurisdiction due to Plaintiff’s lack
See Fed. R. Civ. P. 12(h)(3); 28 U.S.C. §
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
purpose of an appeal.
438, 444-45 (1962).
See Coppedge v. United States, 369 U.S.
The Clerk of Court is respectfully directed
to enter judgment, close this case, send a copy of this Order
and the judgment to plaintiff, and note service on the docket.
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
October 4, 2021
Brooklyn, New York
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