Washington v. Chong et al

Filing 4

ORDER TO AMEND: Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 23-CV-1936 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for lack of subject matter jurisdiction. 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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. (Signed by Judge Laura Taylor Swain on 5/22/23) (rdz)

Case 1:23-cv-01936-LTS Document 4 Filed 05/22/23 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHARMEEN D. WASHINGTON,
Plaintiff,
-againstNABIA CHONG; DANIELLE IACONO,

23-CV-1936 (LTS)
ORDER TO AMEND

Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff brings this action pro se. By order dated March 7, 2023, the Court granted
Plaintiff’s request to proceed in forma pauperis, that is, without prepayment of fees. For the
reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60
days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis 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 of the claims raised.
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 –

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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.
Rule 8 requires a complaint to 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 Charmeen Washington alleges the following facts. On an unspecified date, she
had an eye exam at the SUNY Optometry Clinic in midtown Manhattan. She asked Dr. Daniel
Iacono “not so use that scope yellow machine on me time day [sic] of appointment.” (ECF 2 at
3.)
She further alleges that “after the glaucoma machine was put in my right eye,” she
noticed that “the vision in my right eye became blurrier than the left eye, leaving [her] heart
cold.” (Id.) Plaintiff contends that her “brain still hurts.” (Id.) Moreover, she “had to run to
Bellevue when she became emotionally weak and gained about 10-20 [ ] pounds in about 30
days.” (Id. at 4.) Plaintiff sues Dr. Nabia Chong, who is not mentioned in the body of the
complaint, and Dr. Iacono. She seeks $300,000 in damages. (Id. at 5.)

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DISCUSSION
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, federal jurisdiction is available
only when a “federal question” is presented or when plaintiff and defendant are citizens of
different states and the amount in controversy exceeds the sum or value of $75,000. “‘[A]ny
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)); 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 initiative . . . .”). “If the court determines
at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R.
Civ. P. 12(h)(3).
To invoke 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 pleading 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, 1188-89 (2d Cir. 1996). Plaintiff does not invoke any federal statute, and her
allegations that her eye examination was emotionally traumatic and caused her to seek
psychiatric care do not appear to give rise to a claim under any federal statute.
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Plaintiff also does not allege facts demonstrating that the Court has diversity jurisdiction
of this action. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that
the plaintiff and the defendant are citizens of different states. Wis. Dep’t of Corr. v. Schacht, 524
U.S. 381, 388 (1998). “An individual’ s citizenship, within the meaning of the diversity statue, is
determined by h[er] domicile.” Johnson v. Smithsonian, 4 Fed. App’ x 69, 70 (2d Cir. 2001)
(citing Palazzo v. Corio, 232 F.3d 88, 42 (2d Cir. 2000)). In addition, the plaintiff must allege to
a “reasonable probability” that the claim is in excess of the sum or value of $75,000.00, the
statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network,
Inc., 438 F.3d 214, 221 (2d Cir. 2006) Plaintiff does not specifically plead facts about the
domicile of any party, but she provides addresses for all parties in New York. Plaintiff thus has
not met her burden of demonstrating complete diversity of citizenship.
Because Plaintiff does not plead facts showing that the Court has federal question or
diversity jurisdiction, the Court lacks subject matter jurisdiction of this action.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts
generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its
defects, unless amendment 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). Indeed, the Second Circuit has
cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege
additional facts sufficient to invoke either the Court’s federal question or diversity jurisdiction,
the Court grants Plaintiff 60 days’ leave to amend her complaint to detail her claims.
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In the “Statement of Claim” section of the amended complaint form, Plaintiff must
provide a short and plain statement of the relevant facts supporting each claim against each
defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff
should include all of the information in the amended complaint that Plaintiff wants the Court to
consider in deciding whether the amended complaint states a claim for relief. That information
should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do,
the approximate date and time of each event, and the general location where each
event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory
relief.
Essentially, Plaintiff’s amended complaint should tell the Court: who violated her
federally protected rights; how, when, and where such violations occurred; and why Plaintiff is
entitled to relief.
Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint, any facts or claims that Plaintiff wants to include from the original complaint
must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards
set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit
within 60 days of the date of this order, caption the document as an “Amended Complaint,” and
label the document with docket number 23-CV-1936 (LTS). An Amended Complaint form is
attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the

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time allowed, and she cannot show good cause to excuse such failure, the complaint will be
dismissed for lack of subject matter jurisdiction.
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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated:

May 22, 2023
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
Do you want a jury trial?
‫ ܆‬Yes ‫ ܆‬No

Write the full name of each defendant. If you need more
space, please write “see attached” in the space above and
attach an additional sheet of paper with the full list of
names. The names listed above must be identical to those
contained in Section II.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

Case 1:23-cv-01936-LTS Document 4 Filed 05/22/23 Page 8 of 13

I.

BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of
cases can be heard in federal court: cases involving a federal question and cases involving
diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United
States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,
a case in which a citizen of one State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may
be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
‫ ܆‬Federal Question
‫ ܆‬Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff ,

, is a citizen of the State of
(Plaintiff’s name)

(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.
If more than one plaintiff is named in the complaint, attach additional pages providing
information for each additional plaintiff.

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If the defendant is an individual:
The defendant,

, is a citizen of the State of
(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.

If the defendant is a corporation:
The defendant,

, is incorporated under the laws of

the State of
and has its principal place of business in the State of
or is incorporated under the laws of (foreign state)
and has its principal place of business in

.

If more than one defendant is named in the complaint, attach additional pages providing
information for each additional defendant.

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address

County, City

State

Telephone Number

Email Address (if available)

Zip Code

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Case 1:23-cv-01936-LTS Document 4 Filed 05/22/23 Page 10 of 13

B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. Attach additional pages if needed.
Defendant 1:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 3:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

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Defendant 4:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

III. STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and what each defendant personally did or failed to do that harmed you. Attach
additional pages if needed.

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INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical
treatment, if any, you required and received.

IV. RELIEF
State briefly what money damages or other relief you want the court to order.

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Case 1:23-cv-01936-LTS Document 4 Filed 05/22/23 Page 13 of 13

V. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil
Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
‫ ܆‬Yes

‫ ܆‬No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

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