ABC v. DEF

Filing 3

ORDER OF DISMISSAL: The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is d ismissed for lack of statutory standing under the False Claims Act and failure to state a claim on which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is further directed to unseal this action. All documents in th is case should be filed unsealed. All other matters are terminated. The Court certifies under 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 purpo se of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. (Signed by Judge Colleen McMahon on 8/20/2019) (jwh) Transmission to Docket Assistant Clerk for processing. Transmission to Sealed Records Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES EX REL DR. H.Y. LIM
TUNG,
Plaintiffs,
-against-

1:19-CV-7342 (CM)

DR. HUGH C. HEMMINGS, JR.; DR. JIMCY
PLATHOLI; DR. PAUL HEERDT; DR.
AUGUSTINE M.K. CHOI; DR. THOMAS H.
BLAIR; WEILL CORNELL MEDICAL
COLLEGE; JOHN DOES; JANE DOES,

ORDER OF DISMISSAL

Defendants.
COLLEEN McMAHON, Chief United States District Judge:
Plaintiff H.Y. Lim Tung,1 appearing pro se, filed a sealed qui tam action under the False
Claims Act, 31 U.S.C. 3729–3733. The Court grants Plaintiff’s request to proceed without
prepayment of fees, that is, in forma pauperis.2 The Court dismisses this action for the reasons
set forth below.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or portion thereof, that is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

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In documents submitted to the Court, Plaintiff indicates as his name both “Dr. H.Y. Lim
Tung” and “Hin Y. Limtung.” In three actions filed in the United States District Court for the
Eastern District of New York, Plaintiff provides his name as “Hin Y. Limtung.” See Limtung v.
PayPal Holdings, Inc., No. 19-CV-4316 (RRM) (SJB) (E.D.N.Y. filed July 26, 2019) (claims
arising out of rental agreements); Limtung v. Thomas, No. 19-CV-3646 (RRM) (SJB) (E.D.N.Y.
filed June 21, 2019) (federal claims arising out of mortgage foreclosure); Limtung v. Baum, No.
16-CV-0100 (RRM) (SJB) (E.D.N.Y. Mar. 20, 2019) (same).
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Plaintiff submitted an unsigned blank in forma pauperis (IFP) application with only the
caption filled out. He also submitted a letter requesting that the Court postpone payment of the
$400.00 filing fees until the Government makes a decision as to whether to pursue this action.
The Court construes the two document together as Plaintiff’s IFP application.

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also
dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original).
BACKGROUND
Plaintiff brings this action against Dr. Hugh C. Hemmings Jr., Dr. Jimcy Platholi, Dr. Paul
Heerdt, Dr. Augustine M.K. Choi, Dr. Thomas H. Blair, Weill Cornell Medical College (Weill
Cornell), and John and Jane Does. The following facts are taken from the complaint. Plaintiff is
an expert in the “areas of Protein Phosphatase-11 (PP-11) purification and characterization and
the study of its role in cell death.” (Compl. at 2.) He conceived and wrote a grant application
titled “Role of Protein Phosphatase-1 in Cerebral Ischemia and Cell Death,” which was
submitted by Hemmings and Weill Cornell to the National Institute of Health (NIH), an agency
of the United States Department of Health and Human Services. Hemmings and Weill Cornell
stated in the grant application that Plaintiff was the co-investigator of the project and would be
appointed as an Associate Professor at Weill Cornell. But after NIH funded the research project,
Hemmings and Weill Cornell “appropriated” the funds and failed to appoint Plaintiff as an
associate professor and the co-investigator of the project. (Id.) From 2010 to 2015, Hemmings
and Weill Cornell continued to submit false representations and fabricated data in progress
reports to NIH, and they collected approximately $1,431,600.00 for the purported research

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project. But as they were not experts in that research area, they “did not do any significant
research work and did not obtain any significant scientific results.” (Id. at 3.)
In 2014, “out of desperation,” Hemmings, Platholi, Heerdt, and Weill Cornell stole
Plaintiff’s scientific data and presented it, along with other fabricated data, to the NIH as their
own. (Id.) The defendants did this to “mislead and defraud the NIH.” (Id.) During that time,
Choi, Blair and others conspired to hide the fraudulent actions of Hemmings, Platholi, Heerdt,
and Weill Cornell.
Plaintiff brings this action asserting that Defendants obtained through “false and
fraudulent pretenses” about $1,431,600.00 from the NIH in violation of the False Claims Act.
(Id. at 4.) They also committed scientific fraud and wire fraud. Plaintiff seeks to recover the
funds that Defendants wrongfully obtained from the NIH and suggests that the Government
prosecute Defendants criminally for the wire fraud, which is in violation of 18 U.S.C. § 1343.
DISCUSSION
A.

The False Claims Act (FCA)
Plaintiff’s qui tam claims under the False Claims Act (FCA), 31 U.S.C. § 3729‒3733,

must be dismissed. The FCA permits private persons to bring suit where there has been fraud on
the federal government.3 The qui tam provisions of the FCA allow a private plaintiff to sue
persons who knowingly defraud the federal government. See United States ex rel. Eisenstein v.
City of New York, 556 U.S. 928, 932 (2009). Pro se litigants, however, lack statutory standing to
bring qui tam claims under the FCA. See United States ex rel. Mergent Servs. v. Flaherty, 540

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The FCA imposes civil liability upon “any person” who, among other acts, “knowingly
presents, or causes to be presented, to an officer or employee of the United States
Government . . . a false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a). A
suit under the FCA may be brought by either the federal government or by a private person, or
“relator,” who sues for the United States in a qui tam action. 31 U.S.C. § 3730(a), (b)(1).
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F.3d 89, 93 (2d Cir. 2008); Klein v. City of New York, ECF 1:10-CV-9568, 63, 2012 WL 546786,
at *5 (S.D.N.Y. Feb. 21, 2012).
Because Plaintiff, as a pro se litigant, lacks standing to assert his qui tam claims under the
FCA, the Court dismisses those claims for lack of statutory standing under the FCA.
B.

Wire Fraud Claims
Plaintiff also asserts that Defendants’ actions violated the Wire Fraud Act, 18 U.S.C.

§ 1343. But Plaintiff cannot initiate the arrest and prosecution of any individual or entity in this
Court because “ the decision to prosecute is solely within the discretion of the prosecutor.” Leeke
v. Timmerman, 454 U.S. 83, 87 (1981). Nor can Plaintiff direct prosecuting attorneys to initiate a
criminal proceeding against Defendants, because prosecutors possess discretionary authority to
bring criminal actions, and they are “ immune from control or interference by citizen or court.”
Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). Accordingly,
Plaintiff’s wire fraud claims must be dismissed for failure to state a claim. See 28 U.S.C.
§ 1915(e)(2)(B)(ii).
C.

Unsealing Action
This qui tam action was filed under seal as required by the FCA. See 31 U.S.C. § 3730(b)

Normally a qui tam complaint would remain sealed for sixty days (or longer, if the government
obtains an extension), during which time the government must determine whether to intervene
and proceed with the action. Id. § 3730(b)(2)-(4). But because the Court finds that Plaintiff does
not have standing to bring a qui tam action, the Clerk of Court is directed to unseal this matter.
All documents in the case should be filed unsealed.
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this
order to Plaintiff, and note service on the docket. Plaintiff’s complaint, filed in forma pauperis
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under 28 U.S.C. § 1915(a)(1), is dismissed for lack of statutory standing under the False Claims
Act and failure to state a claim on which relief may be granted under 28 U.S.C.
§ 1915(e)(2)(B)(ii). The Clerk of Court is further directed to unseal this action. All documents in
this case should be filed unsealed. All other matters are terminated.
The Court certifies under 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 an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to docket this as a “written opinion” within the meaning of
Section 205(a)(5) of the E-Government Act of 2002.
SO ORDERED.
Dated:

August 20, 2019
New York, New York
COLLEEN McMAHON
Chief United States District Judge

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