Shaut v. Department of Health and Human Services

Filing 32

DECISION & ORDER: It is Ordered that the # 21 Motion to Dismiss is GRANTED. Plaintiff's Complaint is hereby DISMISSED with prejudice. Signed by Senior Judge Thomas J. McAvoy on 7/14/2015. (jmb) {Copy sent to pro se plaintiff by regular and certified mail}

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------------ANNA M. SCHAUT,
Plaintiff,
v.
6:14-CV-0910
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendant.
----------------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION AND ORDER
I. INTRODUCTION
Presently before the Court is Defendant United States
Department of Health and Human Services’ (“HHS”) motion to
dismiss with prejudice made pursuant to Rules 12 (b)(1) and
(b)(6) of the Federal Rules Of Civil Procedure. Dkt. No. 21-1.
Specifically, Defendant alleges a lack of standing for pro se
Plaintiff Anna M. Shaut that deprives the Court of subject
matter jurisdiction. Dkt. No. 21-1 at 4-6. It is also alleged
that Plaintiff’s amended complaint fails to state a claim upon
which relief can be granted. Dkt. No. 21-1. at 7-8. For the
reasons that follow, the motion will be GRANTED.
II.

BACKGROUND
Plaintiff Anna M. Shaut filed a pro se Complaint, pursuant

to 42 U.S.C. § 1395ff(b), against the HHS seeking judicial
review of a decision made by the Medicare Appeals Council

(“Appeals Council”). See Dkt. No. 1. Plaintiff pursued the
appeal on behalf of her deceased mother Lydia Grzesiak
(“Grzesiak”)1. Dkt. No. 1 at 12. The Council denied Plaintiff’s
request to be reimbursed $29,196.92 for money Grzesiak repaid to
Medicare. Dkt. No. 7 at 2. The Appeals Council reasoned that
Grzesiak had failed to show that the $29,196.92 Medicare lien
was unrelated to the injuries from which Grzesiak received her
settlement recovery. Dkt. No.1 at 13. Plaintiff also filed a
motion to proceed in forma paupers. See Dkt. No. 5. Magistrate
Judge Thérèse Wiley Dancks granted that motion in an order dated
October, 28, 2014. Dkt. No. 7.
Due to defects in Plaintiff’s original Complaint,
Magistrate Judge Dancks, after initial review, ordered a stay of
the action to allow Plaintiff to either retain counsel, or to
amend the Complaint alleging that “she is the administrator or
executor of her mother’s estate, that she is proceeding only on
her own as the sole beneficiary, and that her mother’s estate
has no creditors.”

Id. at 4.

Plaintiff timely filed an Amended

Complaint. Dkt. No. 8. Magistrate Judge Dancks again reviewed
the Amended Complaint, deciding that the Amended Complaint was
“sufficient to survive initial review under 28 U.S.C. §1915
(e)(2006), and that Plaintiff may proceed pro se solely with

1

The Court notes Grzesiak’s obituary, which indicates that
she died on November 22, 2012, and was survived by a number of
children, including Plaintiff. Dkt. No. 7 at 3, n.3.
-2-

respect to her own interest, if any, in the return of the
repayment.”

Dkt. No. 9 at 4 (emphasis added).

However, the

Court “expresse[d] no opinion” with regard to Plaintiff’s
standing, or whether the claim could survive a motion to
dismiss. Id. at 4-5. Judge Dancks directed Defendant to respond
to Plaintiff’s amended complaint. Id. at 4.
Defendant subsequently filed the instant motion to dismiss
for lack of standing and failure to state a claim. Dkt. No. 211. Plaintiff has responded to the motion and later submitted to
the Court a copy of “Letters of Administration with Limitations”
which has been in effect since April 7, 2015. Dkt. No. 26; Dkt.
No. 29. Defendant has replied to the response, as well as to the
“Letters of Administration with Limitations.” Dkt. No. 27; Dkt.
No. 30.
III. LEGAL STANDARDS
Federal Rule of Civil Procedure Rule 12 (b)(1) permits a
defendant to move to dismiss a case by asserting “lack of
subject matter jurisdiction.” FED. R. CIV. P. 12 (b)(1). Rule 12
(b)(6), on the other hand, allows a defendant to move to dismiss
a case due to plaintiff’s “failure to state a claim upon which
relief can be granted.”

FED. R. CIV. P. 12 (b)(6).

Plaintiff here proceeds pro se.

The Court gives a pro se

plaintiff "every favorable inference arising from [her] pro se
status, as well as from [her] position as a nonmovant on these

-3-

motions to dismiss." Craft v. McNulty, 875 F. Supp. 121, 123
(N.D.N.Y. 1995) (quoting Hall v. Dworkin, 829 F. Supp. 1403,
1993 U.S. Dist. LEXIS 10481, *13 (N.D.N.Y. July 27, 1993)). The
Supreme Court requires that “pro se complaints be more liberally
interpreted than those filed by an attorney.” Id. (citing Haines
v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594
(1972)).
Further, the Court will consider papers that a pro se
plaintiff files in opposition to a defendant’s motion to
dismiss, “as effectively amending the allegations of the . . .
[amended] complaint, to the extent that those factual assertions
are consistent with the allegations of the . . . complaint.”
Parks v. Smith, 2009 U.S. Dist. Lexis 87210, *13 (N.D.N.Y Aug.
17, 2009); see Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987)
(considering plaintiff's response affidavit on motion to
dismiss).
Defendant seeks dismissal on two bases.

The Court will

address each standard in turn.
A.

Lack of Subject Matter Jurisdiction

A motion to dismiss based on Rule 12(b)(1) will succeed if
“the district court lacks the statutory or constitutional power
to adjudicate it.”

McCrory v. Adm’r of the Fed. Emergency Mgmt.

Agency of the U.S. Dep’t of Homeland Sec., 2015 U.S. App. LEXIS
7077, *1-2 (2d Cir. N.Y. Apr. 29, 2015) (quoting Makarova v.

-4-

United States, 201 F.3d 110, 113 (2d Cir. 2000)).

“As a

threshold inquiry, a federal court must determine that the
plaintiff has constitutional Article III standing prior to
determining . . . the subsequent merits of the case.” Id. at *2.
The plaintiff bears the burden to “establish standing to
prosecute the action.”

Gomez v. Graham, 2014 WL 5475348 at *4

(N.D.N.Y. Oct. 29, 2014) (quoting Elk Grove Unified Sch. Dist.
v. Newdow, 542 U.S. 1, 11 (2004)).
Three elements must be satisfied to meet the requirement of
Article III standing. See Backer v. Shah, 2015 U.S. App. LEXIS
9210, *4-5 (2d Cir. N.Y. June 3, 2015) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, at 560-61 (1992)). First,
“the plaintiff must show that [s]he personally has suffered an
injury that is ‘concrete, particularized, and actual or imminent
[.]” Gomez, 2014 WL 5475348 at *4 (quoting Clapper v. Amnesty
Int’l, 133 S.Ct. 1138, at 1147 (2013) (internal quotation
omitted)(emphasis added).

Second, the plaintiff must allege a

causal connection between the injury and the defendant’s
conduct.

Backer, 2015 U.S. App. LEXIS 9210 at*5.

Third, the

plaintiff must show a possibility “that the injury will be
redressed by a favorable decision.” Id.
"Each element [of standing] must be supported in the same
way as any other matter on which the plaintiff bears the burden
of proof, i.e., with the manner and degree of evidence required

-5-

at the successive stages of the litigation." Carver v. City of
New York, 621 F.3d 221, 225 (2d Cir. 2010) (alterations in
original) (quoting Lujan, 504 U.S.

at 561). Whether the

plaintiff has satisfied these requirements should be assessed at
the commencement of the lawsuit.

Fenstermaker v. Obama, 354 F.

App’x 452, at 455 n.1 (2d Cir. 2009) (declining to examine
documents defendant sought to submit to demonstrate that he
established an attorney-client relationship with a detainee
after filing his complaint against federal officials, because
standing should be determined “as of the commencement of suit”)
(quoting Lujan, 504 U.S. at 571 n.5).

Also, "standing is

challenged on the basis of the pleadings.”

W. R. Huff Asset

Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, at 106
(2d Cir. 2008).
B. Failure to State a Claim
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a
short and plain statement of the claim showing that the pleader
is entitled to relief,’ in order to ‘give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127
S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47(1957)). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations . . . a plaintiff's obligation to provide the

-6-

‘grounds' of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. at 1964–65.
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
556 U.S. 662, at 678 (2009) (quoting Bell Atl. v. Twombly, 550
U.S. 544, at 570). A plaintiff’s complaint is facially plausible
when the factual content pleaded allows the court to draw the
reasonable inference that the defendant is liable for the
alleged misconduct. Id.
When assessing the sufficiency of a complaint, particular
deference should be given to a pro se litigant whose complaint
merits a generous construction by the Court when determining
whether it states a cognizable cause of action.

Ahlers v.

Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)) (“‘[A] pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers'”) (internal quotations
omitted). Cf. Fed. Rule Civ. Proc. 8(f) ("All pleadings shall be
so construed as to do substantial justice").
IV. DISCUSSION
Plaintiff’s Amended Complaint was submitted to the Court
together with a letter to the Court on November 17, 2014. Dkt.
-7-

No. 8-1. Plaintiff has also filed four documents in response to
Defendant’s motion to dismiss. See Dkt. No. 26, 28, 29, 31. The
Court considers factual assertions in these papers that do not
contradict allegations in the Amended Complaint as effective
amendments to the Amended Complaint. See Parks, 2009 U.S. Dist.
Lexis 87210, *13.
A. Pro Se Plaintiff’s Standing
Defendant argues that Plaintiff lacks standing to sue. Dkt.
No. 21-1 at 4-6.
A plaintiff in federal court has the right to proceed pro
se. 28 U.S.C. § 1654; Berrios v. N.Y.C. Housing Auth, 564 F.3d
130, 133 (2d Cir. 2009). However, “[a] person who has not been
admitted to the practice of law may not represent anyone other
than [her]self.”

Guest v. Hansen, 603 F. 3d 15, 20 (2d Cir.

2010). The Second Circuit held in Pridgen v. Andresen that the
administrator of an estate “may not proceed pro se when the
estate has beneficiaries or creditors other than the litigant.”
Weinstein v. Cadman Towers, Inc., 307 Fed. Appx. 529, 530 (2d
Cir. 2009)(quoting Pridgen v. Andresen,113 F.3d 391, 393 (2d
Cir.1997)). This is so because “ personal interests of the
estate, other survivors, and possible creditors . . . will be
affected by the outcome of the proceedings[,]” and thus, the
case should not be considered the litigant’s own.
Law, 142 F.3d 553, 559 (2d Cir.1998).

-8-

Iannaccone v.

In one of her responses to Defendant’s motion to dismiss,
Plaintiff reiterates that the current action is not “solely with
respect to her own interest.” Dkt. No. 28 at 1. It can be
inferred from the language in her Amended Complaint and
responses to the motion that Plaintiff seeks to represent her
siblings’ interests in the repayment of the Medicare lien. See
Dkt. No. 26; Dkt. No. 28; Dkt. No. 31. However, as a non-lawyer,
pro se Plaintiff is not allowed to represent others’ interests,
even if they are her family members. See Guest, 603 F. 3d at 20.
Plaintiff can only proceed pro se if, at the commencement of the
suit, (1) she is the sole beneficiary of her mother’s estate and
there is no creditor to her mother’s estate; or (2) she
represents her own interest in the repayment.

Plaintiff’s

filings indicate that she cannot meet this standard.
On May 28, 2015, Plaintiff submitted to the Court a copy of
“Letters of Administration with Limitations”, which is issued on
April 7, 2015. Dkt. No. 29 at 2. The letters of administration
give Plaintiff power of “the enforcement of a right of action in
favor of” Plaintiff’s mother and make Plaintiff the
administrator of her mother’s estate. Dkt. No. 29 at 2. However,
this document should not be considered in evaluating Plaintiff’s
standing in this case, because standing should be evaluated as
of the commencement of the law suit, which is on July 23, 2014,

-9-

long before Plaintiff procured the letters of administration.
See Fenstermaker, 354 F. App’x at 455 n.1 (2d Cir. 2009).
Even if this document is not excluded in the evaluation of
standing, Plaintiff still cannot proceed pro se as the
administrator of her mother’s estate. Plaintiff alleges that her
mother did not have any creditors. Dkt. No. 8-1. Yet this is not
enough to establish standing. Plaintiff’s mother died intestate.
See Dkt. No. 31 at 1. In New York, children of an intestate
decedent are all beneficiaries to the decedent’s estate. See N.
Y. E.P.T.L. § 4-1.1. Thus, Plaintiff and her siblings are all
beneficiaries to her mother’s estate. Plaintiff alleges that her
siblings all agreed to give her the authority to be their
fiduciary and signed a notarized document attesting to that.
Dkt. No. 31. at 1. Still, Plaintiff cannot represent her
siblings’ interests as a pro se litigant, even though they give
her authorization to do so. See Guest, 603 F. 3d, 20. The only
way Plaintiff could proceed pro se as the administrator of her
mother’s estate is for her siblings to disclaim any of their
legal interests in their mother’s estate, which they have not
done. See Id. at 21 (stating plaintiff could proceed pro se as
the sole beneficiary of the estate of his daughter because
plaintiff’s wife, previously the other beneficiary of their
daughter’s estate, disclaimed all her legal rights in their

- 10 -

daughter’s estate, and plaintiff affirmed that there was no
creditor to their daughter’s estate).
Since Plaintiff cannot proceed pro se as the administrator
of her mother’s estate, the Court considers Plaintiff’s pro se
standing “with respect to her own interest, if any, in the
return of the repayment” of her deceased mother’s Medicare lien.
Dkt. No. 9 at 4.
The threshold question is “whether a given matter is the
plaintiff's own case, or instead seeks to recover on a claim
that belongs to another.” Webb v. Comm'r of Soc. Sec., No.
8:08 CV 0082, 2009 WL 3719398, at *3 (N.D.N.Y. Nov. 4, 2009)
(citing Iannaccone, 142 F.3d at 558) (internal citation
omitted). Plaintiff must have been personally and adversely
affected by the Appeals Council’s decision regarding repayment
of her deceased mother’s Medicare lien in order to have standing
to bring a lawsuit in this Court. See Gomez, 2014 WL 5475348 at
*4; See also Frasier v. U.S. HHS, 779 F. Supp. 213, 223 (N.D.N.Y
1991).
In the case at bar, Plaintiff has failed to satisfy this
requirement, as well as the requirements set out in Lujan. In
the decision of the Appeals Council that is now being
challenged, Plaintiff’s deceased mother was listed as the
beneficiary. Dkt. No. 1 at 6. This means even if the Appeals
Council’s decision is to be reversed and the money Plaintiff’s

- 11 -

mother paid to Medicare is to be reimbursed, the money will go
to Plaintiff’s deceased mother’s estate, not to Plaintiff
herself. Plaintiff did not personally claim any reimbursement
from Medicare. Under such circumstances, Plaintiff would be
personally and adversely affected by the decision only as a
beneficiary of her mother’s estate. However, as discussed
before, even if Plaintiff is the administrator of her mother’s
estate, she still cannot proceed pro se because there are other
beneficiaries (her siblings) to her mother’s estate.
Authorizations from the other beneficiaries cannot cure this
defect.
In proving her own interest in the reimbursement, Plaintiff
states that “her personal funds were used to assist her mother
after her [initial] lawsuit[,]” and that she spent her
“retirement money to care for” her mother. Dkt. No. 8 at 2; Dkt.
No. 26 at 1. Plaintiff further states that she was her deceased
mother’s “beneficiary for her social security checks, health
care proxy, and caregiver responsible for her financial
responsib[ility].” Dkt. No. 8-1 at 1. These allegations still
fail to demonstrate that Plaintiff suffered actual and personal
injury because of Defendant’s conduct. Plaintiff fails to show
that her stated injury–using her own funds to care for her
mother and to aid in the law suit–was caused by Defendant’s
conduct in obtaining repayment on the Medicare lien or by the

- 12 -

Appeals Council’s denial of her mother’s request for the
reimbursement of the money. The Court will lay out a time line
to illustrate this point.
Plaintiff’s mother was initially hospitalized from January
6, 2010, to January 8, 2010. Dkt. No. 1 at 11. Injuries stemmed
from this period lead to aggravated congestive heart failure due
to alleged medical malpractice. Id. Plaintiff’s mother secured a
$75,000 settlement for these injuries. Id. Plaintiff’s mother
paid the $29,196.92 Medicare lien on April 20, 2012. Id.
Plaintiff’s mother received her settlement after this date. Dkt.
No. 28 at 2. Plaintiff’s mother passed away on November, 22,
2012. Dkt. No. 7 at 3.
Plaintiff has not specified during which time period she
used her own fund/retirement money to care for her mother. For
argument’s sake, the Court assumes that before April 20, 2012,
when the repayment of the Medicare lien was made, and after
January 6, 2010, when Plaintiff’s mother was first hospitalized,
Plaintiff expended her own funds to care for her mother.
Plaintiff’s funds spent during this period were not caused by
the lien repayment, because the repayment happened after
Plaintiff expended these funds. Instead, they were likely caused
by the underlying malpractice.
The second period is from April, 20, 2012, to November, 22,
2012, when Plaintiff’s mother passed away. Plaintiff does not

- 13 -

allege that she expended her own funds during this period. Even
if Plaintiff cared for her mother using her own funds during
this period, she still fails to offer any evidence suggesting
such expenditure was caused by the lien repayment. Plaintiff
thus offers no facts suggesting the possibility of a favorable
decision.
Plaintiff further alleges emotional distress because of the
Appeals Council’s decision. Dkt. 28 at 1. Yet this allegation
fails the actual injury requirement because other than simply
stating that she suffered from emotional distress, Plaintiff
offers no factual allegations in support of this claim.
Thus, by failing to show actual injury and casual
connection, Plaintiff cannot establish standing to proceed with
her claim against Defendant with regard to her own interest. The
motion to dismiss will be granted on this ground.
B. Sufficiency of Complaint
Defendant also argues that, even if Plaintiff had standing,
her claim should be dismissed because it fails to state a claim
upon which relief can be granted.
The contents in pro se Plaintiff’s responses to Defendant’s
motion to dismiss that do not contradict the Amended Complaint
will be considered effective amendments to the Complaint. The
Court will therefore also consider such submissions in addition

- 14 -

to the Amended Complaint, in evaluating the sufficiency of
pleading.
In deciding whether a secondary payer, like Medicare in
this case, is entitled to recovery, the Appeals Council refers
to the Medicare Secondary Payer Manual (MSPM)for instruction.
Dkt. No. 1 at 14. Chapter 7 of the MSPM provides:
When a beneficiary has filed suit for accident-related
services, including services relating to exacerbation of an
underlying condition as the basis for the complaint, the
total amount of Medicare’s payments should be used to
calculate the amount of Medicare’s recovery.
Medicare Secondary Payer Manual, CMS Pub. 100-05 Ch.7, section
50.4.5(2014). This MSPM provision is usually read as supporting
the conclusion that “all medical expenses related to the injury
for which the [Plaintiff’s mother] received a settlement are
presumptively included in the settlement amount.” Dkt. No.1 at
14. Thus, the main issue for the Appeals Council in deciding on
Plaintiff’s appeal is whether the Medicare lien was related to
the injury from which Plaintiff’s mother received settlement.
Read liberally, Plaintiff states in the First Cause of
Action in the Amended Complaint that she is entitled to
reimbursement of the repayment paid to Medicare because the
repayment is not related to her mother’s liability claim. Dkt.
No. 8 at 2. However, this is only a conclusory rejection of the
Appeal Council’s decision--Plaintiff offers no further
explanation to support this allegation. Plaintiff simply

- 15 -

restates the element of her cause of action, which is the
relation of the pay to the injury. Although detailed factual
allegations are not necessary in the pleading stage, Plaintiff
still has an obligation to provide the Court with “grounds” of
her “entitlement to relief.” See Twombly, 127 S.Ct. at 1964-65.
Without providing the Court with more facts suggesting that the
repayment is not related to her mother’s liability claim,
Plaintiff leaves the Court with nothing “to draw the reasonable
inference” that Appeals Council’s decision to deny reimbursement
might be wrong. Iqbal, 556 U.S. at 678.
In fact, Plaintiff alleges in one of her responses that she
is entitled to the reimbursement because if she is not, her
mother would be the one paying for the hospital’s mistake. Dkt.
No. 28 at 2. This allegation acknowledges that the Medicare lien
is related to her mother’s liability claim. Even though this
allegation is in direct contradiction to Plaintiff’s Amended
Complaint, and thus, should not be considered as part of the
complaint, it shows that Plaintiff’s conclusory allegation could
not be supported by any factual evidence. Other factual
allegations in the First Cause of Action, given the inferences
necessary in a pro se case, also fail to establish a colorable
claim.
The Second Cause of Action also fails to state a claim. The
cause of action only explains the reason why Plaintiff did not

- 16 -

obtain counsel to proceed with this case and offers no grounds
that could plausibly entitle Plaintiff to relief. In the Third
Cause of Action, Plaintiff demands that she be reimbursed
$29,196.62. The Court agrees with Defendant that this is a
demand for relief, not a cause of action, and does not state a
claim.
In one of her responses, Plaintiff alleges three additional
causes of actions: emotional distress to her mother and her
mother’s children, medical malpractice, and that “Medicare
should be going after the hospital for repayment.” Dkt. No. 28
at 1. All of these claims lack substance and are mere conclusory
statements, and thus, they will be dismissed. Moreover, these
claims actually seek relief that Plaintiff’s mother had already
obtained. In her responses, Plaintiff also explains the facts
concerning the medical malpractice case from which her mother
received a settlement. Construed broadly, the allegations in
Plaintiff’s responses fail to meet the sufficiency requirement
set out in Twombly and Iqbal. Thus, even if Plaintiff had
standing to sue, the motion to dismiss would be granted for
failure to state a claim upon which relief could be granted.
C. Leave to Amend
Leave to amend "shall be freely given when justice so
requires." Fed. R. Civ. P. 15(a). However, since the Court has
already allowed Plaintiff to amend her complaint once, it is not

- 17 -

required that Plaintiff be given another opportunity to amend.
See Excell v. Woods, 2009 U.S. Dist. LEXIS 90191, *37-38
(N.D.N.Y Mar. 12, 2009) (citing Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (internal quotation and citation omitted).
When the problem with a plaintiff’s cause of action is
substantive, and better pleading will not cure it, repleading
would be futile. Monreal v. New York, 2012 U.S. Dist. LEXIS
91281, *28 (N.D.N.Y June 29, 2012) (quoting Cuoco, 222 F.3d at
112). Here, Plaintiff has already exercised her right to amend
once, yet she still fails to offer factual allegations in
support of her conclusory ones. Moreover, as the Court has
explained, Plaintiff lacks standing to bring this suit and that
problem cannot be cured. "[W]here a plaintiff is unable to
allege any fact sufficient to support its claim, a complaint
should be dismissed with prejudice." Van DeViver v. Bardot, 2009
U.S. Dist. LEXIS 101488, *12-14 (N.D.N.Y. Oct. 30, 2009)
(quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42,
48 (2d Cir. 1991) ). “This rule applies even to pro se
plaintiffs.” Id. at *14-15. Plaintiff’s complaint will be
dismissed with prejudice.
IV. CONCLUSION
For the above reasons, Defendant’s motion to dismiss
pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules

- 18 -

of Civil Procedure, dkt No. 21, is hereby GRANTED. Plaintiff’s
complaint is dismissed with prejudice.

IT IS SO ORDERED.
Dated:July 14, 2015

- 19 -