Delahoussaye v. Physical Review Letters PRX Journal

Filing 6

MEMORANDUM & ORDER re: 2 Motion for leave to proceed in forma pauperis is GRANTED. Plaintiff's Complaint is sua sponte DISMMISSED for lack of subject matter jurisdiction. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED for the purpose any appeal. This case is CLOSED. Ordered by Judge Joanna Seybert on 10/23/2013. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
BRETTE DELAHOUSSAYE,
Plaintiff,

MEMORANDUM & ORDER
13-CV-4603(JS)(GRB)

-againstPHYSICAL REVIEW LETTERS PRX
JOURNAL,

Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Brette Delahoussaye, pro se
7719 Goodland Avenue
North Hollywood, CA 91605-2041
For Defendant:

No appearances.

SEYBERT, District Judge:
On August 12, 2013, pro se plaintiff Brette Delahoussaye
(“Plaintiff”) filed a Complaint against Physical Review Letters PRX
Journal (the “Journal” or “Defendant”).

Plaintiff’s Complaint was

accompanied by an application to proceed in forma pauperis.

Upon

review of the declaration in support of the application to proceed
in forma pauperis, the Court determines that Plaintiff is qualified
to commence this action without prepayment of the filing fee.
28 U.S.C. § 1915(a)(1).

See

Therefore, Plaintiff’s request to proceed

in forma pauperis is GRANTED.

However, because Plaintiff does not

meet the requirement for diversity jurisdiction, or allege any
other

federal

cause

of

action,

the

Complaint

DISMISSED for lack of subject matter jurisdiction.

is

sua

sponte

BACKGROUND1
Plaintiff has been recognized as a mathematical and
scientific scholar by many publications for discovering a “really
great mathematical Transform Equation back in 1999.”
¶ III.C.)

(Compl.

Plaintiff submitted an article on July 24, 2013 for

publication

to

Defendant

who,

through

its

editorial

offices,

“unjustifiably rejected [Plaintiff’s article] on 08-01-13 without
a

chance

for

[Plaintiff]

to

defend

[the]

paper

via

a

phone

conference.” (Compl. ¶ III. A-B.) Plaintiff states that Defendant
“won’t give [Plaintiff] the satisfaction and dignity of publishing
[Plaintiff’s] Important Discovery in [Defendant’s] Journal for a
fee of 1500 dollars.”

(Compl. ¶ III.C.)

Plaintiff seeks $2000 in

compensatory damages and an unspecified amount of travel expenses.
(Compl. ¶ V.)
DISCUSSION
I.

Application to Proceed In Forma Pauperis
Upon review of the declaration in support of Plaintiff’s

application to proceed in forma pauperis, the Court determines that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
As such, Plaintiff’s request to proceed in forma pauperis is
GRANTED.
1

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purpose of this Memorandum &
Order.
2

II.

Application of 28 U.S.C. § 1915
A district court is required to dismiss an in forma

pauperis complaint if the action 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.

See 28

U.S.C. §§ 1915(e)(2)(B)(i-iii), 1915A(b). The Court is required to
dismiss the action as soon as it makes such a determination.
id. § 1915A(b).

See

Because courts are obliged to construe the

pleadings of a pro se plaintiff liberally, the Court interprets a
pro se plaintiff’s papers to “raise the strongest arguments that
they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471,
474 (2d Cir. 2006) (internal quotation marks and citation omitted).
III. Subject Matter Jurisdiction
The

jurisdiction

of

the

federal

courts

is

limited;

federal jurisdiction only exists when a “federal question” is
presented, that is a civil action “arising under the Constitution,
laws, or treaties of the United States,” see 28 U.S.C. § 1331, or
when

there

is

“diversity

of

citizenship”

and

the

controversy exceeds $75,000, see 28 U.S.C. § 1332.

amount

in

See also

Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 136 (2d Cir. 2002).
There

is

an

independent

obligation

for

a

federal

court

to

“determine whether subject matter-jurisdiction exists, even in the
absence of a challenge from any party.”

Arbaugh v. Y&H Corp., 546

U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006) (internal
3

citation omitted).

When a federal court concludes that it lacks

subject matter jurisdiction, it must dismiss the complaint in its
entirety.

FED. R. CIV. P. 12(h)(3).
Here,

Plaintiff

has

checked

neither

the

“Federal

Question” box nor the “Diversity of Citizenship” box under the
section of his Complaint entitled
(Compl. ¶ II.A.)

“Basis for Jurisdiction.”

Plaintiff has also not provided any of the

additional information requested under the section titled “Basis
for Jurisdiction.”2

(Id. ¶ II.B.-C.)

As such, construing the

Complaint liberally, the Court assumes that Plaintiff seeks to
invoke this Court’s jurisdiction under both 28 U.S.C. § 1331 and
§ 1332.
A.

Diversity Jurisdiction
Plaintiff’s allegations fail to establish that complete

diversity exists.

Plaintiff is domiciled in California.

A

corporate defendant, for the purposes of diversity jurisdiction, is
a citizen of the state of its incorporation and the state in which
its principal place of business is located.

28 U.S.C. § 1332

(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 80, 130 S. Ct. 1181,
175

L.

Ed.

2d

1029

(2010).

Plaintiff,

however,

makes

no

allegations concerning Defendant’s principal place of business or

2

Plaintiff has not informed this Court “what federal Constitutional, statutory or treaty right is at issue” (Compl. ¶ II.B.),
and Plaintiff has not filled out the parties’ respective states
of citizenship (id. ¶ II.C.).
4

Defendant’s state of incorporation, other than to include a New
York address for Defendant when listing the parties to the action
(Compl. ¶ I.B.).

Plaintiff also fails to meet the minimum amount

in controversy necessary for the Court to have jurisdiction as he
seeks only $2,000 and an unspecified amount of travel expenses3 in
damages, which is less than the necessary $75,000.

See Lupo v.

Human Affairs Int’l, Inc., 28 F.3d 269, 273-74 (2d Cir. 1994) (upon
reviewing a complaint with an unspecified amount of damages to see
if it met the monetary requirement for diversity jurisdiction, the
Second Circuit held that “if the jurisdictional amount is not
clearly alleged in the plaintiff’s complaint . . . federal courts
lack diversity jurisdiction”); see also 28 U.S.C. § 1332(a).
However, as noted above, subject matter jurisdiction may
also be established where the Complaint presents a federal question
pursuant to Section 1331.

“A plaintiff properly invokes § 1331

jurisdiction when she pleads a colorable claim ‘arising under’ the
Constitution or laws of the United States.”
513.

Arbaugh, 546 U.S. at

A claim alleging federal-question jurisdiction “may be

dismissed for want of subject-matter jurisdiction if it is not
colorable, i.e., if it is ‘immaterial and made solely for the
purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and
frivolous.’”

Id., 546 U.S. at 513 n.10.

3

Although courts hold pro

There are no allegations that Plaintiff’s travel expenses
exceed $73,000.
5

se complaints “to less stringent standards than formal pleadings
drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173,
66 L. Ed. 2d 163 (1980) (internal quotation marks and citation
omitted),

pro

se

litigants

must

establish

subject

matter

jurisdiction, see, e.g., Rene v. Citibank N.A., 32 F. Supp. 2d 539,
542–43 (E.D.N.Y. 1999) (dismissing a pro se complaint for lack of
subject matter jurisdiction).
Here, even given a liberal construction, Plaintiff’s
Complaint does not allege a federal claim such that the Court’s
federal

question

subject

matter

jurisdiction

may

be

invoked.

Plaintiff does not reference the Constitution, any federal statute,
or

any

United

States

treaty

anywhere

in

the

Complaint,

and

Plaintiff’s allegations do not support a colorable claim in any of
these aforementioned categories.

A colorable claim pursuant to 42

U.S.C. § 1983, which is the procedural mechanism for alleging a
civil rights claim arising from the violation of an individual’s
constitutional

rights,

requires

that

a

plaintiff

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

her

rights

or

privileges

Constitution of the United States.

as

secured

by

the

Annis v. Cnty. of Westchester,

136 F.3d 239, 245 (2d Cir. 1998); see also Bernstein v. New York,
591 F. Supp. 2d 448, 460 (S.D.N.Y. 2008).

Under very limited

circumstances not alleged here, private actors, such as Defendant,
6

may be held liable under Section 1983.

See Jackson v. Metro.

Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42 L. Ed. 2d 477
(1974); Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d 178, 187
(2d Cir. 2005)); see also Rendell–Baker v. Kohn, 457 U.S. 830,
838–42, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982).

Here, Defendant

appears to be a private company not alleged to have any connection
with any government body and thus has not acted under color of
state law.

Moreover, the Complaint is wholly devoid of any

allegations concerning the deprivation of any constitutional right
as is required to state a plausible Section 1983 claim.

In the

absence of any allegations against a state actor of a deprivation
of a constitutional right, Plaintiff’s Section 1983 claim is not
plausible and does not establish this Court’s federal subject
matter jurisdiction.
In sum, there is no independent basis of jurisdiction
here. There is no diversity jurisdiction because Plaintiff alleges
neither Defendant’s principal place of business nor its state of
incorporation, and the amount in controversy sought by Plaintiff is
well below the $75,000 threshold.

In addition, Plaintiff’s cause

of action is not grounded in the Constitution, any federal law, or
any United States treaty.

Accordingly, the Court lacks subject

matter jurisdiction.
IV.

Leave to Amend
Given

the

Second

Circuit’s
7

guidance

that

a

pro

se

Complaint should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) the Court has carefully considered whether leave to
amend is warranted here.

Upon such consideration, the Court finds

that since the deficiencies noted above are substantive in nature
and would not be remedied if Plaintiff were afforded an opportunity
to amend his Complaint.

As such, leave to amend the Complaint is

DENIED.
CONCLUSION
Plaintiff’s request to proceed in forma pauperis is
GRANTED.

Plaintiff’s Complaint is sua sponte DISMISSED, for lack

of subject matter jurisdiction.
The Clerk of Court is directed to mail a copy of this
Order to the pro se Plaintiff and to mark this matter CLOSED.
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
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.

Dated:

October
23 , 2013
Central Islip, New York

8

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.