Micolo v. Greenpoint Savings Bank
Filing
13
MEMORANDUM & ORDER granting 8 Motion for Leave to Proceed in forma pauperis; granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's applications to proceed in forma pauperis are GRANTED, how ever the Complaint is sua sponte DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); and FED. R. CIV. P. 12(h)(3). 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. The Clerk of the Court is directed to mail a copy of this Memorandum & Order to the Plaintiff and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 4/9/2018. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
MARCUS ANTHONY MICOLO,
Plaintiff,
MEMORANDUM & ORDER
17-CV-5991(JS)(AKT)
-againstGREENPOINT SAVINGS BANK,
Defendant.
---------------------------------X
APPEARANCES
For Plaintiff:
Marcus Anthony Micolo, pro se
03-A-3985,
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
For Defendant:
No appearance.
SEYBERT, District Judge:
On October 12, 2017, incarcerated pro se plaintiff Marcus
Anthony Micolo (“Plaintiff”) filed a Complaint in this Court
against Greenpoint Savings Bank (“Defendant”) seeking an Order
compelling Defendant to provide him with “copies of the pictures in
its
care,
custody
and
control
with
regards
November 6, 2001 robbery of Branch 13 . . . .”
to
the
alleged
(Compl. ¶ 11.)
Accompanying the Complaint is an application to proceed in forma
pauperis.
However, Plaintiff did not file the required Prisoner
Authorization Form (“Form”).
Accordingly, by Notice of Deficiency
dated October 17, 2017, Plaintiff was instructed to complete and
return the enclosed Form within fourteen (14) days in order for his
Complaint to proceed.
On October 27, 2017, Plaintiff timely
complied with the Notice of Deficiency and filed the completed Form
together with another application to proceed in forma pauperis.
(See Docket Entries 8-9.)
Upon
review
of
the
declarations
in
support
of
the
applications to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fee.
See 28 U.S.C. § 1915(a)(1).
Therefore,
Plaintiff’s requests to proceed in forma pauperis are GRANTED.
However,
because
the
Court
lacks
subject
matter
jurisdiction, the Complaint is DISMISSED WITHOUT PREJUDICE pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) and FED. R. CIV. P.
12(h)(3).
BACKGROUND1
Plaintiff’s Complaint seeks to compel the Defendant2, who
is alleged to be located in Rocky Point, New York or Brooklyn, New
York, (Compl. ¶¶ 3-4), to provide him with copies of pictures of
the interior of the bank taken on November 6, 2001 during a
robbery.
e.g.,
Plaintiff has admitted to committing the robbery (see,
Micolo
v.
F.B.I.
Special
Agents,
17-CV-5931
(JS)(AKT)
1
All material allegations in the Complaint and are presumed to
be true for the purpose of this Memorandum and Order. Rogers v.
City of Troy, New York, 148 F.3d 52, 58 (2d Cir. 1998) (in
reviewing a pro se complaint for sua sponte dismissal, a court is
required to accept the material allegations in the complaint as
true).
2
Although Plaintiff names Greenpoint Savings Bank as the sole
defendant, he alleges that it “was bought out by Capitol One Bank
in 2007-08 but does still have an office [in Brooklyn] where it
can be served.” (Compl. ¶ 4.)
2
(Complaint)) and was convicted in 2003 in state court of Robbery in
the First Degree and of Unauthorized Use of a Motor Vehicle in the
First Degree. Plaintiff claims that the pictures “may be useful to
him in a post-conviction motion pursuant to N.Y. Criminal Procedure
Law Section 440.10.”
(Compl. ¶ 10.)
DISCUSSION
I.
In Forma Pauperis Applications
Upon review of Plaintiff’s declaration in support of the
applications to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fees.
See 28 U.S.C. § 1915(a)(1).
Therefore,
Plaintiff’s requests to proceed in forma pauperis are GRANTED.
II.
Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to
dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
from
such
1915A(b).
relief.
See
28
U.S.C.
§§
1915(e)(2)(B)(i)-(iii),
The Court is required to dismiss the action as soon as
it makes such a determination.
See id. § 1915A(b).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).
However, a complaint must plead sufficient
3
facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).
“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).
The
plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”
Id. at 678; accord Wilson v.
Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).
While
“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
at
Iqbal, 556 U.S.
678 (quoting Twombly, 550 U.S. at 555).
III. Subject Matter Jurisdiction
Notwithstanding the liberal pleading standard afforded
pro se litigants, federal courts are courts of limited jurisdiction
and
may
not
jurisdiction.
F.3d
697,
preside
over
cases
if
they
lack
subject
matter
Lyndonville Sav. Bank & Trust Co. v. Lussier, 211
700–01
(2d
Cir.
2000).
Unlike
lack
of
personal
jurisdiction, lack of subject matter jurisdiction cannot be waived
and may be raised at any time by a party or by the Court sua
sponte. Id. “If subject matter jurisdiction is lacking, the action
must be dismissed.”
Id. at 700–01; see FED. R. CIV. P. 12(h)(3).
4
The basic statutory grants of subject matter jurisdiction
are embodied in 28 U.S.C. §§ 1331 and 1332.
Arbaugh v. Y & H
Corp., 546 U.S. 500, 513, 126 S. Ct. 1235, 1244, 163 L. Ed. 2d 1097
(2006).
Section 1331 provides federal question jurisdiction and
Section
1332
provides
jurisdiction
based
on
diversity
of
citizenship. Id. A plaintiff properly invokes § 1332 jurisdiction
when he presents a claim between parties of complete diverse
citizenship and the amount in controversy exceeds $75,000.
Id.
Here, although Plaintiff seeks to invoke this Court’s
federal question jurisdiction, he alleges only that his claims
arise under “any and all applicable federal law know [sic] to the
Court.”
(Compl.
¶
1.)
Subject
matter
jurisdiction
may
be
established pursuant to § 1331 where a claim arises under the
“Constitution, laws or treaties of the United States.”
§ 1331.
28 U.S.C.
“A plaintiff properly invokes § 1331 jurisdiction when he
pleads a colorable claim ‘arising under’ the Constitution or laws
of the United States.
Arbaugh, 56 U.S. at 513, 126 S. Ct. at 1237.
A claim alleging federal question subject matter 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. at 513 n.10, 126 S. Ct. at 1237 n.10.
Plaintiff
has not provided the Court with any guidance as to the legal basis
for his claim, and the Court knows of no federal law that would
5
provide relief to Plaintiff under the circumstances alleged in the
Complaint.
Accordingly, Plaintiff has failed to properly invoke
this Court’s federal question subject matter jurisdiction.
Given Plaintiff’s pro se status, the Court has also
considered whether this Court’s diversity jurisdiction may be
invoked.
However, it appears this case lacks complete diversity
between parties as Defendant is expressly alleged to be located in
New
York,
the
Accordingly,
adjudicate
same
this
state
Court
Plaintiff’s
as
Plaintiff.
lacks
subject
claim.
28
matter
Although
U.S.C.
§
1332.
jurisdiction
courts
hold
pro
to
se
complaints “to less stringent standards than formal pleadings
drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173,
176, 66 L.Ed.2d 163 (1980), pro se litigants must establish subject
matter jurisdiction to avoid dismissal.
Citibank
N.A.,
(dismissing
pro
jurisdiction).
32
se
F.
Supp.
2d
complaint
539,
for
See,
541-42
lack
of
e.g., Rene v.
(E.D.N.Y.
1999)
subject
matter
Accordingly, Plaintiff’s Complaint is DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),
1915A(b)(1); FED. R. CIV. P. 12(h)(3).
Plaintiff may pursue any
state law claims he may have against Defendant in state court.
IV.
Leave to Amend
Given
the
Second
Circuit’s
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
6
Cir. 2000), the Court has carefully considered whether leave to
amend is warranted here. Because the defects in Plaintiff’s claims
are substantive and would not be cured if afforded an opportunity
to amend, leave to amend the Complaint is DENIED.
CONCLUSION
For the reasons set forth above, Plaintiff’s applications
to proceed in forma pauperis are GRANTED, however the Complaint is
sua sponte DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),
1915A(b)(1); and FED. R. CIV. P. 12(h)(3).
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).
The Clerk of the Court is directed to mail a copy of this
Memorandum & Order to the Plaintiff and to mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: April
9 , 2018
Central Islip, New York
7
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