Hursh v. Aponte et al

Filing 6

ORDER OF DISMISSAL: The Court dismisses the complaint for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(h)(3), and for failure to state a claim, see 28 U.S.C. § 1915(e) (2)(B)(ii). The Court also denies Plaintiff's request fo r injunctive relief. The Clerk of Court is directed to terminate all other pending matters in this case. 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 IFP statu s 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 also directed to mail a copy of this order to Plaintiff, and note service on the docket. (Signed by Judge Laura Taylor Swain on 1/10/22) (sac) Transmission to Docket Assistant Clerk for processing.

Case 1:21-cv-08418-LTS Document 6 Filed 01/10/22 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KRIS HURSH,
Plaintiff,
-against-

21-CV-8418 (LTS)
ORDER OF DISMISSAL

JOE APONTE, et al.,
Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is appearing pro se, brings this action invoking federal question jurisdiction
under 28 U.S.C. § 1331. He asserts that Defendants violated his rights. By order dated January 4,
2022, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is, without
prepayment of fees. For the reasons set forth below, the Court dismisses the complaint.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
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 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –

Case 1:21-cv-08418-LTS Document 6 Filed 01/10/22 Page 2 of 5

to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil
Procedure, which requires a complaint to make a short and plain statement showing that the
pleader is entitled to relief.
The Supreme Court has held that, under Rule 8, a complaint must include enough facts to
state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the
Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing
the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals
of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550
U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court
must determine whether those facts make it plausible – not merely possible – that the pleader is
entitled to relief. Id.
BACKGROUND
Plaintiff uses a complaint form titled “Complaint and Request for Injunction” that he
obtained from the United States Courts website. He sues two employees of Cabin Bar, Joe
Aponte and Sandra Ortiz; a private investigator named Crissanya Johnson; and a fourth
individual named Charles Coller. Plaintiff invokes federal question jurisdiction and asserts that
Defendants violated his rights. He claims that Defendants sought evidence against him, hacked
his phone and emails, trespassed into his home, and interfered with his counsel. Plaintiff
indicates that the events giving rise to his claims occurred at his apartment in Manhattan ‒ which
shares the same building address as Cabin Bar ‒ but he does not provide any facts about what
any individual defendant did or failed to do that violated his rights.

2

Case 1:21-cv-08418-LTS Document 6 Filed 01/10/22 Page 3 of 5

Plaintiff also submits a proposed order to show cause for a preliminary injunction and
temporary restraining order, in which he asserts that Defendants committed a string of violations,
including criminal trespass into his apartment, unlawful surveillance, eavesdropping, harassment
through electronic devices, stalking, hacking, and filming. He again fails to provide any facts
about what occurred.
DISCUSSION
A.

Federal question jurisdiction
The subject matter jurisdiction of the federal district courts is limited. Federal jurisdiction

exists only when a “federal question” is presented, 28 U.S.C. § 1331, or when there is “diversity
of citizenship” between the plaintiff and the defendant and the amount in controversy exceeds
$75,000.00, 28 U.S.C. § 1332. Federal courts “have an independent obligation to 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 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999)). If a court “concludes that it lacks subject-matter jurisdiction, [it] must
dismiss the complaint in its entirety.” Arbaugh, 546 U.S. at 514; see also Fed. R. Civ. P 12(h)(3).
To provide a basis for federal question jurisdiction, a plaintiff’s claims must arise “under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under
federal law if the complaint “establishes either that federal law creates the cause of action or that
the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal
law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Mere invocation of
federal jurisdiction, without any facts demonstrating a federal law claim, does not create federal
subject matter jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 118889 (2d Cir. 1996).
3

Case 1:21-cv-08418-LTS Document 6 Filed 01/10/22 Page 4 of 5

Plaintiff invokes the Court’s federal question jurisdiction, but the complaint does not set
forth any federal claims. Plaintiff sues private individuals, rather than people employed by the
government or acting for the government, and any claims that he has against them do not appear
to arise under the Constitution or any federal statute. The complaint does not show that the Court
has federal question jurisdiction of this action.1
B.

Failure to state a claim
Even if the Court had jurisdiction to consider Plaintiff’s claims, he fails to satisfy federal

pleading rules. He does not provide a short and plain statement showing that he is entitled to
relief, as required by Rule 8, or include any facts suggesting that any defendant violated his
federal rights. In order to state a claim for relief, a complaint must contain enough facts to allow
the Court to reasonably infer that the defendant is liable to the plaintiff. Iqbal, 556 U.S. at 678
(2009) (citing Twombly, 550 U.S. at 555). Plaintiff’s complaint contains no facts about what
occurred or how the defendants or any other person allegedly violated his rights. As Plaintiff fails
to articulate a viable legal claim, the Court dismisses the complaint for failure to state a claim on
which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
C.

Leave to amend.
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,

1

Plaintiff does not invoke the Court’s diversity jurisdiction. Based on the information he
provides in the complaint, he fails to demonstrate that he and all the defendants are citizens of
different states and that complete diversity exists. Plaintiff alleges that he resides at the same
Manhattan address as Cabin Bar, and he provides the same address for each of the defendants.
Because Plaintiff indicates that he and all of the defendants are citizens of New York, diversity of
citizenship does not exist between the parties, precluding diversity jurisdiction. Further, Plaintiff
alleges no facts suggesting that the amount in controversy exceeds $75,000.00, the statutory
amount necessary for diversity jurisdiction.

4

Case 1:21-cv-08418-LTS Document 6 Filed 01/10/22 Page 5 of 5

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 file an amended complaint.
CONCLUSION
The Court dismisses the complaint for lack of subject matter jurisdiction, see Fed. R. Civ.
P. 12(h)(3), and for failure to state a claim, see 28 U.S.C. § 1915(e)(2)(B)(ii). The Court also
denies Plaintiff’s request for injunctive relief. The Clerk of Court is directed to terminate all
other pending matters in this case.
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 IFP 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 also directed to mail a copy of this order to Plaintiff, and note
service on the docket.
SO ORDERED.
Dated:

January 10, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

5