Amos v. Buffalo Civic Auto

Filing 3

DECISION AND ORDER: For the reasons stated, Plaintiff's motion to proceed in forma pauperis is granted, and his complaint is dismissed, without prejudice, for lack of subject-matter jurisdiction. The Court certifies, pursuant to 28 U.S.C . § 1915(a)(3), that any appeal taken from this decision would not be taken in good faith. Thus, leave to appeal in forma pauperis is denied. The Clerk of the Court shall take all steps necessary to close this case. SO ORDERED. Signed by Hon. Richard J. Arcara on 8/30/17. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
MICHAEL RAY AMOS,
Plaintiff,
17-CV-797-A
DECISION AND ORDER

v.
BUFFALO CIVIC AUTO,
Defendant.
_________________________________

Plaintiff Michael Ray Amos, proceeding pro se, has filed a complaint against
Defendant Buffalo Civic Auto. For the reasons stated below, the complaint is dismissed,
without prejudice, for lack of subject-matter jurisdiction.
BACKGROUND
Plaintiff’s allegations are brief. He alleges that he was injured while walking past
a parking ramp in Buffalo, New York. As he passed the ramp, Plaintiff alleges, a car
exited. Plaintiff claims that he then “went around the car and the arm which is located
near the sidewalk hit [him] on the head.” Docket No. 1 at 4.
DISCUSSION
Plaintiff first moves to proceed in forma pauperis. See Docket No. 2. After
reviewing Plaintiff’s motion, the Court finds that Plaintiff is indigent and grants his motion.
Plaintiff’s complaint, however, must be dismissed for lack of subject-matter
jurisdiction. “Whenever it appears by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed. R. Civ. P.
12(h)(3). See also Arbaugh v. Y&H Corp., 546 U.S. 500, 507 (2006) (“”[C]ourts . . . have

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an independent obligation to determine whether subject-matter jurisdiction exists, even in
the absence of a challenge from any party.”) (citations omitted).
No basis for subject-matter jurisdiction is apparent from the face of the complaint,
even when the allegations are assumed to be true and even when all reasonable factual
inferences are drawn in Plaintiff’s favor. No federal question (see 28 U.S.C. § 1331) is
apparent from the complaint’s allegations—that is, the complaint does not contain “a
colorable claim ‘arising under’ the Constitution or laws of the United States.” Arbaugh,
546 U.S. at 513. Nor does the complaint allege diversity of citizenship between the parties
(see id. § 1332): Plaintiff states that he is a resident of Buffalo, New York, and he alleges
that Buffalo Civic Auto is located at “Washington St. Buffalo NY.” Docket No. 1 at 2. 1 The
Court therefore lacks subject-matter jurisdiction over this case. As a result, the complaint
must be dismissed.
A court typically “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)
(quotation marks and citation omitted).

But if “the problem” with a complaint is

“substantive,” such that “better pleading will not cure it,” “[r]epleading would . . . be futile,”
and a pro se plaintiff need not be provided leave to amend. Id. Leave to amend would
be futile in this case; improved pleading will not create a federal question out of a personal

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If the Defendant is a diverse party, Plaintiff has not alleged facts from which such diversity might
reasonably be inferred. It is, of course, Plaintiff’s burden to allege that the Court has subject-matter
jurisdiction over this case. See, e.g., Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002). In addition, because
Plaintiff has not alleged that the parties are diverse, the Court need not address whether the Plaintiff has
sufficiently alleged that the amount in controversy “exceeds the sum or value of $75,000.” 28 U.S.C.
§ 1332(a).

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injury action, nor will it create diversity between the parties. Thus, the Court denies
Plaintiff leave to amend.
CONCLUSION
For the reasons stated above, Plaintiff’s motion to proceed in forma pauperis is
granted, and his complaint is dismissed, without prejudice, for lack of subject-matter
jurisdiction. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal taken
from this decision would not be taken in good faith. Thus, leave to appeal in forma
pauperis is denied. The Clerk of the Court shall take all steps necessary to close this
case.
SO ORDERED.

Dated: August 30, 2017
Buffalo, New York

___s/Richard J. Arcara__________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE

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