Leogrande v. Government Employees Insurance Company

Filing 5

MEMORANDUM AND OPINION. For the reasons set forth in the attached Memorandum and Order, the federal claims in the complaint are dismissed with prejudice. To the extent plaintiff attempts to assert some state law claim, the Court in its discretion de clines to exercise supplemental jurisdiction over any such claims and those claims are dismissed without prejudice. The Clerk of the Court shall enter judgment accordingly and close this case. 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, thus, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Joseph F. Bianco on 4/20/2011. (Graves, Kelly)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-1320 (JFB) (ARL)
No 11-CV-1319 (JFB) (ARL)
_____________________

KENNETH LEOGRANDE,
Plaintiff,
VERSUS

ERIE INS. CO. OF N.Y.,
Defendant.
AND

KENNETH LEOGRANDE,
VERSUS

GOV’T EMPLOYEES INS. CO., A.K.A. GEICO,
Defendant.
___________________
MEMORANDUM AND ORDER
April 20, 2011
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Kenneth Leogrande
(“plaintiff” or “Leogrande”) commenced
these separate actions on March 18, 2011
against defendants Erie Insurance Company
of New York (“Erie”) and Government
Employees Insurance Company, A.K.A.
GEICO
(“GEICO”)
(collectively
“defendants”). The complaints purport to
allege claims for deprivation of plaintiff’s
Equal Protection and Due Process rights

under 42 U.S.C. § 1983.1 Accompanying
each of plaintiff’s complaints is an
application to proceed in forma pauperis.
1

Plaintiff filed a series of five lawsuits in 2010
in connection with his arrest and ongoing
prosecution in Suffolk County. Those cases
have been consolidated under 08-cv-3088. The
claims in the instant case appear to be unrelated
to the claims in those other lawsuits. In any
event, as noted below, the federal claims in the
instant two lawsuits under Section 1983 must be
dismissed for lack of state action.

The Court grants plaintiff’s request to
proceed in forma pauperis pursuant to 28
U.S.C. § 1915(a) and, for the reasons
discussed below, dismisses the Section 1983
claims in these complaints sua sponte with
prejudice for lack of state action. The Court
declines
to
exercise
supplemental
jurisdiction over any purported state claims.

Denial of Claim Form, instead of obeying
the law.” (Id. ¶ 8.) These actions, according
to plaintiff, “[v]iolated . . . Equal Protection
of the Law as it is expressed in Article 51 of
The New York State Insurance Law . . . .
which states, that Insurance Companies,
must pay all bills within 30 days.” (Id. ¶¶ 78.) Plaintiff seeks $1,000,000 in damages
for Erie’s alleged violation of plaintiff’s
constitutional rights.

I. BACKGROUND
These actions both stem from an alleged
accident on December 1, 2007, during which
plaintiff “was rear ended, by a new pick-up
Truck, that was Speeding well over 100
m.p.h.”2 (GEICO Compl. ¶ 4; Eric Compl. ¶
1.) Plaintiff claims that, as a result of this
accident, he “lives in the EXTREEMES, of
PAIN, and HUMAN SUFFERING,” and
accordingly “needs the 9 Trigger Point
Injections, that Neurologist, Dr. Haddad,
was providing, every two weeks.” (Erie
Compl. ¶ 9). He also alleges that he needs
spinal surgery to relieve his pain (id. ¶ 11;
GEICO Compl. ¶ 10), as well as chiropractic
care (Erie Compl. ¶ 10), and that he “can
not, use his toes’ to walk, but must, use the
heal of the foot, ball of the foot and the sides
of both feet, in order to walk.” (GEICO
Compl. ¶ 10.)

As to defendant GEICO, plaintiff claims
that GEICO made a bad faith offer to settle a
state-law tort action3 with plaintiff for
$7,500. (GEICO Compl. ¶ 9.) Specifically,
plaintiff alleges:
GEICO, Ins. Co., was not required
by Law to make an offer for
settlement prior to Verdict, but when
they made a bad faith offer, a NONEQUITABLE, offer of Reparation,
for SERIOUS INJURY, they
Violated the Constitutional Rights of
the Plaintiff . . . to, EQUAL
PROTECTION, of the Law and . . .
to, DUE PROCESS of LAW, by,
Violating, Plaintiff’s, Equal Right, to
the Protection, of, Article51 of The
New York Insurance Law, as applied
to all of the People, of the State of
New York, EQUALLY, with
disregard to Financial Class, with,
UNIFORM APPLICATION of the
Law, both for the wealthy and for the
poor. GEICO, Ins. CO., in the case
of Leogrande, Knowing, that nearly
50- 60 thousand dollars, had been
distributed to the WHITE COLLAR
CLASS, the professional class, ( the
State of N.Y., alone received 25k, for
treatment of Plaintiff; at Stony Brook

As to defendant Erie, plaintiff claims
that Erie violated his Equal Protection and
Due Process rights “by, Summarily,
terminating, Health Care Services, in order
to maximize Corporate Profits,” when it
terminated plaintiff’s chiropractic treatment
and terminated the “Trigger Point
Injections.” (Erie Compl. ¶ 7.) Further,
plaintiff alleges that Erie violated his
constitutional rights by “refusing to pay 46
Health Services Bills, and mailed out a
2

3

All quotations from plaintiff’s papers are cited
as written. Any typographical or grammatical
errors in the quotations appeared in the original
and are quoted without notation.

Based on documents attached to the complaint,
it appears that this settlement offer was made in
connection with plaintiff’s underlying tort action
in another court.

2

offer, made by, GEICO, to Plaintiff;
that, will be crippled and in
SUFFERING, for the rest of life.

Physical Therapy) Testing, about 6k,
Chiropractic, about 5k Neurology
about 3k Testing for Surgery 2k,
between 35-45k, was handed over
the, White Collar Class, in addition
to a totaled out, NEW TRUCK,
( 25k)handed over to Corporations,
for an estimated grand total of 5070k, dispersed to the WEALTHY: a,
TAINTED offer, of REPARATION,
$7500 was offered to a crippled man,
living on the poverty level, that had
no visible means to ENFORCE, his
CIVIL RIGHTS.

(Id. ¶ 13.) Plaintiff seeks $1,000,000 in
damages from GEICO.
II. STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e), a district
court is required to dismiss sua sponte a
complaint filed in forma pauperis if the
complaint is, inter alia, “frivolous” or if it
“fails to state a claim on which relief may be
granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii).
However, when a plaintiff is proceeding pro
se, a court has an obligation to construe his
or her pleadings liberally. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (quoting Haines
v. Kerner, 404 U.S. 519, 520 (1972)). If a
liberal reading of the complaint “gives any
indication that a valid claim might be
stated,” a court cannot dismiss an action sua
sponte. McEachin v. McGuinnis, 357 F.3d
197, 201 (2d Cir. 2004) (quoting Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003)).

(Id.) In addition, plaintiff claims that his
“Constitutional Right, to an, EQUITABLE,
offer of REPARATION” was prejudiced
during his examination before trial, when
plaintiff was asked questions regarding his
income, where he lived, and what level of
education he had. (Id. ¶ 11.) Plaintiff
claims that “this information was used to
Deny,
Plaintiff;
a
Equitable,
REPARATION, with prejudice, against,
Plaintiff’s Financial Class.” (Id.) Finally,
plaintiff asserts:

“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.’” Olushina v. Gonzalez, No. 06-CV4030 (JG), 2006 WL 2927158, at *2
(E.D.N.Y. Oct. 11, 2006) (dismissing sua
sponte § 1983 claim against defense attorney
for lack of state action) (quoting Livingston
v. Adirondack Beverage Co., 141 F.3d 434,
437 (2d Cir. 1998)) (additional quotation
marks omitted).

It is apparent, to this Plaintiff; that,
large settlement offers, are given to,
Wealthy Members, of the White
Collar Class, and that, an Audit of
the Facts, is never made, to
determine the distribution of Wealth.
Insurance Companies, would not
permit, a Lawful Audit. Plaintiff;
believes, that very small offers are
made to the poor, as, a matter of
National Policy, or, the poor, are
given nothing at all. These, are
certainly the facts in the case of
Leogrande. The clear intention, of
GEICO, with prejudice, against, the
POOR CLASS, is to make sure, that
no WEALTH, is distributed, to the
POOR.
Nothing could prove,
ENEQUITY, more than a $7500

Similarly, a complaint fails to state a
claim for which relief can be granted when it
does not “allege a plausible set of facts
sufficient ‘to raise a right to relief above the
speculative level.’” See Operating Local
649 Annuity Trust Fund v. Smith Barney
3

Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.
2010) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). This standard
does not require “heightened fact pleading
of specifics, but only enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.

Court concludes that plaintiff’s complaints
should be dismissed because plaintiff has
not, and cannot, allege that either defendant
was a “state actor” for purposes of § 1983.5

Article 51 appear to be part of plaintiff’s § 1983
claims. However, to the extent that plaintiff is
seeking to allege a separate state-law claim for
violation of New York Insurance Law, the Court
declines to exercise supplemental jurisdiction
over such a claim, given that plaintiff’s federal
claims must be dismissed for the reasons stated
infra. See 28 U.S.C. § 1367(c)(3); see also Cave
v. E. Meadow Union Free Sch. Dist., 514 F.3d
240, 250 (2d Cir. 2008) (“We have already
found that the district court lacks subject matter
jurisdiction over appellants’ federal claims. It
would thus be clearly inappropriate for the
district court to retain jurisdiction over the state
law claims when there is no basis for
supplemental jurisdiction.”); Kolari v. N.Y.Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (“[A] district court may decline to
exercise supplemental jurisdiction if it has
dismissed all claims over which it has original
jurisdiction.”
(internal
quotation
marks
omitted)); Karmel v. Claiborne, Inc., No. 99
Civ. 3608 (WK), 2002 WL 1561126, at *4
(S.D.N.Y. July 15, 2002) (“Where a court is
reluctant to exercise supplemental jurisdiction
because of one of the reasons put forth by §
1367(c), or when the interests of judicial
economy, convenience, comity and fairness to
litigants are not violated by refusing to entertain
matters of state law, it should decline
supplemental jurisdiction and allow the plaintiff
to decide whether or not to pursue the matter in
state court.”). Thus, the Court need not address
any New York Insurance Law cause of action, to
the extent that plaintiff sought to bring one.

Moreover, it is well settled that a court
may dismiss a claim under Section 1983 sua
sponte where there is no conceivable basis
to find that the defendant was a state actor.
See Peterec-Tolino v. New York, 364 F.
App’x 708, 711 (2d Cir. 2010) (affirming
district court’s sua sponte dismissal of §
1983 claims because, inter alia, certain
defendants were not state actors); see also
Walton v. Breeyear, No. 9:05-CV-0194
(LEK/DEP), 2007 WL 446010, at *5 n.12
(N.D.N.Y. Feb. 8, 2007); Mendlow v. Seven
Locks Facility, 86 F. Supp. 2d 55, 59 n.1 (D.
Conn. 2000); Sommer v. Rankin, 449 F.
Supp. 66, 67 (E.D.N.Y. 1978) (“In this case,
the claim of state action, which is essential
to the invocation of [§] 1983, is clearly
frivolous. This court cannot believe that the
Court of Appeals intended that sua sponte
dismissal should be avoided even in cases
such as this, where there is no conceivable
basis for liability under § 1983.
Accordingly, the court is of the opinion that
in this particular case, such dismissal would
not be inappropriate.”).
III. DISCUSSION
The Court liberally construes plaintiff’s
pro se complaints as attempting to assert
Fourteenth Amendment Due Process and
Equal Protection claims pursuant to 42
U.S.C. § 1983.4 As set forth herein, the

5

In the alternative, the Court concludes that the
complaints fail to satisfy Federal Rule of Civil
Procedure 8. Although it is abundantly clear
that there is no state action for purposes of
Section 1983, the exact nature of plaintiff’s
claims are unclear because the pleadings are a
series of scattered allegations with random
references to injuries, medical treatments, and
constitutional provisions. Thus, even assuming

4

The Court notes that plaintiff also cited to
Article 51 of the New York Insurance Law in
support of his claims. Plaintiff appears to allege
that defendants’ purported violation of Article
51 resulted in a violation of plaintiff’s Equal
Protection rights and, thus, the citations to
4

A. Section 1983

v. Yale Sch. of Medicine, 347 F. App’x 663,
664-65 (2d Cir. 2009) (internal citations
omitted).

Section 1983 of Title 42 of the United
States Code provides:

B. Analysis
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State . . .
subjects, or causes to be subjected,
any citizen of the United States . . .
to the deprivation of any rights,
privileges, or immunities secured by
the Constitution and laws, shall be
liable to the party injured. . . .

In the instant action, it is clear from the
allegations of the complaints that defendants
cannot, as a matter of law, qualify as state
actors within the meaning of § 1983.
Indeed, plaintiff neither alleges that
defendants were acting under color of state
law nor provides any facts from which it
could be inferred that defendants were
acting under authority of state law. In fact,
although the precise details of his claims are
incomprehensible, the one thing that is
apparent from the pleadings is that plaintiff
is attempting to sue private insurance
companies under Section 1983 for some
alleged refusal to pay medical expenses or
for offering a settlement figure that plaintiff
apparently deemed to be too low. With
respect to any such claims, plaintiff has not
(and cannot) allege state action and, thus, his
federal claims should be dismissed sua
sponte as frivolous because they are based
on an indisputably meritless legal theory.
See Licari v. Voog, 374 F. App’x 230, 231
(2d Cir. 2010) (affirming district court’s sua
sponte dismissal of § 1983 claim against
defense attorney because claim was
frivolous under § 1915(e)(2)(B)(i)); Graham
v. City of Albany, 08-CV-892 (RFT), 2009
WL 4263510, at *13 (N.D.N.Y. Nov. 23,
2009) (sua sponte dismissing § 1983 action
for failure to allege that private individual
was acting under color of state law where
plaintiff “alleged no facts to suggest that
[the private party] acted jointly with the
[state] Defendants” and made “no allegation
that [the private party] had any interaction or
agreement with the [state defendants]”
(internal citations omitted)).

See 42 U.S.C. § 1983.
Thus, to state a claim under Section
1983, a plaintiff must allege two elements:
(1) the defendant acted under color of state
law; and (2) as a result of the defendant’s
actions, the plaintiff suffered a deprivation
of his rights or privileges as secured by the
Constitution of the United States. See Annis
v. County of Westchester, 136 F.3d 239, 245
(2d Cir. 1998). An individual acts under
color of state law when he or she exercises
power “‘possessed by virtue of state law and
made possible only because the wrongdoer
is clothed with the authority of state law.’”
Polk Cnty. v. Dodson, 454 U.S. 312, 317-18
(1981) (quoting United States v. Classic,
313 U.S. 299, 326 (1941)). “Private parties
are generally not amenable to suit under §
1983, because they are not state actors,
although they may be liable where ‘there is a
sufficiently close nexus between the State
and the challenged action of the [private
party] so that the action of the latter may be
fairly treated as that of the State itself,’ . . .
or where they are ‘jointly engaged with state
officials’ in a conspiracy to deprive the
plaintiff of his constitutional rights.” Bhatia
arguendo plaintiff could allege state action, the
complaints would fail to survive Rule 8 because
they are largely incomprehensible.
5

amendment would be futile”); Wilson v.
Wilson-Polson, No. 09 Civ. 9810 (PGG),
2010 WL 3733935, at *10 (S.D.N.Y. Sept.
23, 2010) (leave to amend unwarranted
because, inter alia, plaintiff could not allege
state action under Section 1983); Contes v.
City of New York, No. 99 Civ. 1597 (SAS),
1999 WL 500140, at *11 (S.D.N.Y. July 14,
1999) (“It would be futile to grant leave to
replead in this case. Without state action,
which is lacking here, [plaintiff] cannot
prevail on a claim pursuant to § 1983.”).

C. Leave to Amend
In dismissing plaintiff’s federal claims,
the Court has considered whether to dismiss
the federal claims with prejudice, or grant
leave to re-plead.
Having thoroughly
reviewed the complaints, the Court declines
to provide plaintiff with an opportunity to
re-plead, because even if plaintiff could
satisfy the requirements of Rule 8, he cannot
correct the fact that defendants were not
acting under color of state law for purposes
of plaintiff’s § 1983 claims.

IV. CONCLUSION
The Second Circuit has emphasized that
“[a] pro se complaint is to be read liberally.
Certainly the court should not dismiss
without granting leave to amend at least
once when a liberal reading of the complaint
gives any indication that a valid claim might
be stated.” Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (internal quotation
marks omitted). Under Rule 15(a) of the
Federal Rules of Civil Procedure, “[t]he
court should freely give leave [to amend]
when justice so requires.” Fed. R. Civ. P.
15(a)(2). However, even under this liberal
standard, this Court finds that any attempt to
amend the pleading in this case would be
futile. See Cuoco, 222 F.3d at 112 (“The
problem with [plaintiff’s] cause[] of action
is substantive; better pleading will not cure
it. Repleading would thus be futile. Such a
futile request to replead should be denied.”)
As discussed in detail supra, it is clear from
the complaints that plaintiff does not have
any possibility of asserting a plausible
Section 1983 claim. Thus, where any
amendment to the complaints would clearly
be futile because of a lack of state action
under Section 1983, dismissal without leave
to re-plead is appropriate. See, e.g., PeterecTolino v. New York, 364 F. App’x at 711
(affirming district court’s sua sponte
dismissal of § 1983 claims without leave to
amend because, inter alia, certain
defendants were not state actors and “[a]ny

For the foregoing reasons, the federal
claims in the above-referenced complaints
are dismissed with prejudice. To the extent
plaintiff attempts to assert some state law
claim, the Court in its discretion declines to
exercise supplemental jurisdiction over any
such claims and those claims are dismissed
without prejudice. The Clerk of the Court
shall enter judgment accordingly and close
these cases. 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, thus, in forma pauperis status is denied
for purposes of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

________________________
JOSEPH F. BIANCO
United States District Judge
Date: April 20, 2011
Central Islip, NY

6