Delahoussaye v. Physical Review Letters PRX Journal
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
MEMORANDUM & ORDER
-againstPHYSICAL REVIEW LETTERS PRX
Brette Delahoussaye, pro se
7719 Goodland Avenue
North Hollywood, CA 91605-2041
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.
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).
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
DISMISSED for lack of subject matter jurisdiction.
Plaintiff has been recognized as a mathematical and
scientific scholar by many publications for discovering a “really
great mathematical Transform Equation back in 1999.”
Plaintiff submitted an article on July 24, 2013 for
“unjustifiably rejected [Plaintiff’s article] on 08-01-13 without
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.)
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
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purpose of this Memorandum &
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.
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).
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
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
controversy exceeds $75,000, see 28 U.S.C. § 1332.
Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 136 (2d Cir. 2002).
“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
When a federal court concludes that it lacks
subject matter jurisdiction, it must dismiss the complaint in its
FED. R. CIV. P. 12(h)(3).
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
(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
Plaintiff’s allegations fail to establish that complete
Plaintiff is domiciled in California.
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,
allegations concerning Defendant’s principal place of business or
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.).
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.”
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
Id., 546 U.S. at 513 n.10.
Although courts hold pro
There are no allegations that Plaintiff’s travel expenses
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
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
Plaintiff does not reference the Constitution, any federal statute,
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
elements: (1) the defendant acted under color of state law; and (2)
as a result of the defendant’s actions, the plaintiff suffered a
Constitution of the United States.
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,
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).
appears to be a private company not alleged to have any connection
with any government body and thus has not acted under color of
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.
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
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
Leave to Amend
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
Plaintiff’s request to proceed in forma pauperis is
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
See Coppedge v. United States, 369 U.S. 438, 444-45,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
23 , 2013
Central Islip, New York
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
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