Davis v. Davis et al
ORDER: The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note service on the docket. The Court vacates its November 20, 2020 order and its January 29, 2021 judgment. (ECF 3 & 4.) The Court dismisses this action for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). SO ORDERED. (Signed by Judge Louis L. Stanton on 9/7/21) (rdz) Transmission to Docket Assistant Clerk for processing. Modified on 9/9/2021 (rdz).
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JAMES ANTHONY DAVIS (SON),
-againstHOSIE DAVIS JR. (FATHER); BEULAH
LOUIS L. STANTON, United States District Judge:
By order dated November 20, 2020, the Court denied Plaintiff’s application to proceed in
this court in forma pauperis (“IFP”) and dismissed this action without prejudice because the
Court understood that Plaintiff, who appears pro se, is barred under the three-strikes provision of
the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), from filing federal civil
actions IFP as a prisoner. 1 Davis v. Davis, No. 1:20-CV-8125, 2020 WL 6875061 (S.D.N.Y.
Nov. 20, 2020). But the Court granted Plaintiff 30 days from the date of that order to pay the
relevant fees to bring this action. Id. Because Plaintiff failed to pay those fees within the time
allowed, on January 29, 2021, the Court entered judgment dismissing this action without
prejudice under § 1915(g).
On February 17, 2021, the Court received from Plaintiff a notice of appeal, a motion for
leave to proceed IFP on appeal, as well as a motion for an extension of time to file a notice of
appeal under Rule 4(a)(5) of the Federal Rules of Appellate Procedure. (ECF 5, 6, & 7.) By order
Plaintiff is presently incarcerated in the High Desert State Prison, in Indian Springs,
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dated March 19, 2021, the Court denied Plaintiff’s motion for an extension of time as
unnecessary and granted Plaintiff’s motion for leave to proceed IFP on appeal.
In the Court’s March 19, 2021 order, the Court noted that upon discovery of the July 15,
2020 opinion of Judge Boulware of the United States District Court for the District of Nevada –
a copy of which Plaintiff had included with his notice of appeal – the Court was informed, for
the first time, that since the age of fourteen, Plaintiff had been deemed legally incompetent.
Davis v. Davis, ECF 1:20-CV-8125, 8, at 2-3 (S.D.N.Y. Mar. 19, 2021) (citing Davis v. Neven,
No. 2:15-CV-1574, 2020 WL 4032265 (D. Nev. July 15, 2020)). The Court held that Judge
Boulware’s opinion had “cast serious doubt” on the dismissals that the Court had relied on as
“strikes” when the Court recognized, in its November 20, 2020 order, Plaintiff as barred under
the PLRA’s three-strikes provision, 28 U.S.C. § 1915(g). Id. at 3. The Court stated that the
November 20, 2020 order “must be set aside, even though the case would . . . have been unable
to proceed for lack of counsel.” Id. (citing Berrios v. New York City Hous. Auth., 564 F.3d 130
(2d Cir. 2009)). But the Court also noted that because Plaintiff had filed a timely notice of
appeal, the Court lacked the power to set aside that order. Id.
In a July 1, 2021 decision, the United States Court of Appeals for the Second Circuit
remanded this action to the Court and dismissed Plaintiff’s appeal “because the district court has
issued an indicative order stating that it would set aside its dismissal order. . . .” Davis v. Davis,
No. 21-392, 2021 WL 3674107 (2d Cir. July 1, 2021).
Following the action’s remand to this Court, by order dated September 7, 2021, the Court
granted Plaintiff’s IFP application. 2
Prisoners are not exempt from paying the full filing fee, even when they have been
granted permission to proceed IFP. See § 1915(b)(1).
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For the reasons discussed below, the Court vacates its November 20, 2020 order
recognizing Plaintiff as barred under the PLRA’s three-strikes provision, 28 U.S.C. § 1915(g),
and its January 29, 2021 judgment dismissing this action without prejudice for that reason. But
for the following reasons, the Court dismisses this action for lack of subject-matter jurisdiction.
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought
by prisoners who proceed IFP. See 28 U.S.C. § 1915(e)(2). The Court must dismiss a prisoner’s
IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. Id.; see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court
must also dismiss a complaint if 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 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
Plaintiff, a Nevada state prisoner, asserts claims under the Court’s diversity jurisdiction.
He alleges that he is a citizen of the State of New York. (ECF 2, at 2.) He sues his parents, Hosie
Davis Jr. and Beulah Davis, and alleges that his father, Hosie Davis Jr., is also a citizen of the
State of New York. In addition, it appears that Plaintiff alleges the same of his mother, Beulah
Davis, as he alleges that both of his parents are located at the same address in Medford, Suffolk
County, New York. (Id. at 3-4.) Plaintiff asserts claims arising from his parents’ alleged neglect
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and abuse of him – including sexual abuse of him– while he was a minor. 3 (Id. at 2, 5-6.) He
seeks damages and asks the Court to enjoin his parents from telephoning him, sending him any
mail, visiting him, or sending anyone to visit him. In addition, he asks the Court to criminally
charge his parents and to issue “a divorce from [his] parents for good.” (ECF 2, at 6.)
The Court vacates its previous order and judgment dismissing this action
As the Court previously noted, in its November 20, 2020 order, the Court recognized
Plaintiff as barred under the PLRA’s three-strikes provision, 28 U.S.C. § 1915(g), by relying on
dismissals (or “strikes”) that were incurred by Plaintiff as a legally incompetent prisoner
appearing pro se. 4 Davis, ECF 1:20-CV-8125, 8, at 3. But because “[an] . . . incompetent person
normally lacks the capacity to bring suit for himself,” Berrios, 564 F.3d at 134, a legally
incompetent prisoner lacks the capacity to incur strikes under § 1915(g) with respect to any pro
se litigation he files while he is legally incompetent, cf. Harris v. Mangum, 863 F.3d 1133, 113940 (9th Cir. 2017) (“[I]f (1) the disposition of [a prisoner’s] lawsuit resulted in his receiving a
strike and (2) that strike could impact his ability to bring future lawsuits in forma pauperis, [the
prisoner] had a protectable interest in the litigation” that could trigger the protections afforded to
an incompetent person under Fed. R. Civ. P. 17(c)).
Plaintiff does not provide his age or date of birth in his complaint. But according to the
inmate search feature within the website of the Nevada Department of Corrections,
https://ofdsearch.doc.nv.gov/, Plaintiff is currently fifty-three years old.
Under the PLRA’s three-strikes provision, 28 U.S.C. § 1915(g):
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding [IFP] . . . if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
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Plaintiff has been legally incompetent since he was fourteen years old. Thus, he did not
have the capacity to incur the strikes that the Court previously relied on to recognize him as
barred under § 1915(g). The Court therefore vacates its November 20, 2020 order and January
29, 2021 judgment dismissing this action without prejudice under § 1915(g).
The Court lacks subject-matter jurisdiction to consider this action
The Court must dismiss this action because the Court lacks subject-matter jurisdiction to
consider Plaintiff’s claims. The subject-matter jurisdiction of the federal district courts is limited
and is set forth generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, a federal district
court’s jurisdiction is available only when a “federal question” is presented or, when a plaintiff
asserts claims under state law under the Court’s diversity jurisdiction, when the plaintiff and the
defendants are citizens of different states and the amount in controversy exceeds the sum or
value of $75,000.
“‘[I]t is common ground that in our federal system of limited jurisdiction any party or the
court sua sponte, at any stage of the proceedings, may raise the question of whether the court has
subject matter jurisdiction.’” United Food & Commercial Workers Union, Local 919, AFL-CIO v.
CenterMark Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (quoting Manway
Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)); see
Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”); Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own
To establish the Court’s diversity jurisdiction, a plaintiff must first show that he and the
defendants are citizens of different states. See 28 U.S.C. § 1332(a)(1); Wis. Dep’t of Corr. v.
Schacht, 524 U.S. 381, 388 (1998) (“A case falls within the federal district court’s ‘original’
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diversity ‘jurisdiction’ only if diversity of citizenship among the parties is complete, i.e., only if
there is no plaintiff and no defendant who are citizens of the same State.”). For diversity
purposes, an individual is a citizen of the State where he is domiciled, which is defined as the
place where he “has his true fixed home . . . and to which, whenever he is absent, he has the
intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (internal
quotation marks and citation omitted). An individual “has but one domicile.” Id. And “[w]hen a
prisoner is incarcerated in a state different from his previous domicile, there is a rebuttable
presumption that the prisoner retains his pre-incarceration domicile rather than acquiring a new
domicile.” Mendoza v. Mladinich, No. 1:20-CV-10010, 2021 WL 2186231, at *2 (S.D.N.Y. May
20, 2021) (alteration in original, internal and quotation marks omitted).
There is a second component to diversity jurisdiction − the amount in controversy must
be in excess of the sum or value of $75,000. See § 1332(a). The sum claimed by a plaintiff will
control if it is made in good faith. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 288 (1938). The Court can dismiss a complaint for failing to plead that the amount in
controversy exceeds the sum or value of $75,000, but only if there is “a legal certainty from the
complaint that the plaintiff cannot recover sufficient damages to invoke [diversity] jurisdiction.”
Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982); see Ochoa v. Interbrew
Am., Inc., 999 F.2d 626, 629 (2d Cir. 1993) (“[I]n determining whether a challenged
jurisdictional amount has been met, district courts are permitted only to assess the allegations in
a complaint and not the validity of any asserted defenses.”).
Plaintiff alleges that he and at least one, if not both, of his parents are citizens of the State
of New York. The parties are therefore not diverse, and the Court thus lacks diversity jurisdiction
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to consider Plaintiff’s claims. Accordingly, the Court dismisses this action for lack of subjectmatter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
Because the Court dismisses this action for lack of subject-matter jurisdiction, which is
not an adjudication on the merits, St. Pierre v. Dyer, 208 F.3d 394, 400 (2d Cir. 2000), it need
not address the issue of Plaintiff’s appearing pro se in this action while he is legally incompetent,
see Galanova v. Portnoy, 432 F. Supp.3d 433, 442 (S.D.N.Y. 2020) (“In cases in which the
plaintiff is incapacitated, and therefore unable to proceed pro se, and is unrepresented, the district
court must not reach the merits of a claim filed on behalf of an incompetent person who is not
properly represented by a suitable guardian and through counsel.” (internal quotation marks and
citation omitted)); cf. Berrios, 564 F.3d at 135 (district courts are permitted to dismiss claims
brought on behalf on an incompetent person when “no substantial claim could be asserted,” but
may only do so without prejudice).
Leave to amend is denied
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to
cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,
657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Because the defects in Plaintiff’s complaint cannot be cured with an amendment, the Court
declines to grant Plaintiff leave to amend his complaint.
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note
service on the docket.
The Court vacates its November 20, 2020 order and its January 29, 2021 judgment. (ECF
3 & 4.)
Case 1:20-cv-08125-LLS Document 13 Filed 09/08/21 Page 8 of 8
The Court dismisses this action for lack of subject-matter jurisdiction. See Fed. R. Civ. P.
September 7, 2021
New York, New York
Louis L. Stanton
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