UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID DWAIN DICKERSON, Plaintiff, -against- 23-CV-9938 (LTS) WENDY DICKERSON, Retired from Bronx ORDER OF DISMISSAL DA’s Office, Daughter, Administrator Lois Dickerson wrongful death case, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff David Dwain Dickerson, who is appearing pro se, brings this action under the Court’s federal question jurisdiction against his sister, Wendy Dickerson, in her capacity as executrix of their mother’s estate. By order dated November 13, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. The complaint is dismissed for the reasons set forth below. STANDARD OF REVIEW The Court must dismiss an IFP complaint, or portion thereof, 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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). BACKGROUND The following facts are drawn from the complaint. Defendant, who is Plaintiff’s sister, “scammed” him and their other siblings into allowing her to serve as the executrix of their mother’s estate. (ECF 1 ¶ III.) According to Plaintiff, Defendant: (1) failed to keep him and their siblings “abreast of” a wrongful death lawsuit against emergency medical technicians in
connection with their mother’s death; (2) did not take proper care of their father while he was alive; (3) took insurance money from both of their deceased parents without distributing it to the other family members; and (4) has not generally acted in the best interest of the family or the estate. (Id.) Plaintiff notes that his sister is a retired employee of the Bronx County District Attorney’s Office. (Id. ¶ IIB.) Both Plaintiff and Defendant reside in New York. (Id. ¶ IB.) Plaintiff seeks his “fair share” of his mother’s estate. (Id. ¶ IV.) DISCUSSION A. Subject matter jurisdiction 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 has jurisdiction 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. “‘[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 & Com. Workers Union, Loc. 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 initiative.”). Federal question jurisdiction 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 any facts demonstrating a federal law claim, does not create federal subject matter jurisdiction. See Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1188- 89 (2d Cir. 1996). Insofar as Plaintiff invokes the court’s federal question jurisdiction and asserts violations of his federally protected rights, the court construes the complaint as asserting a claim under 42 U.S.C. § 1983. To state a claim under section 1983, a plaintiff must allege both that: (1) a right
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID DWAIN DICKERSON, Plaintiff, -against- 23-CV-9938 (LTS) WENDY DICKERSON, Retired from Bronx ORDER OF DISMISSAL DA’s Office, Daughter, Administrator Lois Dickerson wrongful death case, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff David Dwain Dickerson, who is appearing pro se, brings this action under the Court’s federal question jurisdiction against his sister, Wendy Dickerson, in her capacity as executrix of their mother’s estate. By order dated November 13, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. The complaint is dismissed for the reasons set forth below. STANDARD OF REVIEW The Court must dismiss an IFP complaint, or portion thereof, 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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). BACKGROUND The following facts are drawn from the complaint. Defendant, who is Plaintiff’s sister, “scammed” him and their other siblings into allowing her to serve as the executrix of their mother’s estate. (ECF 1 ¶ III.) According to Plaintiff, Defendant: (1) failed to keep him and their siblings “abreast of” a wrongful death lawsuit against emergency medical technicians in
connection with their mother’s death; (2) did not take proper care of their father while he was alive; (3) took insurance money from both of their deceased parents without distributing it to the other family members; and (4) has not generally acted in the best interest of the family or the estate. (Id.) Plaintiff notes that his sister is a retired employee of the Bronx County District Attorney’s Office. (Id. ¶ IIB.) Both Plaintiff and Defendant reside in New York. (Id. ¶ IB.) Plaintiff seeks his “fair share” of his mother’s estate. (Id. ¶ IV.) DISCUSSION A. Subject matter jurisdiction 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 has jurisdiction 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. “‘[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 & Com. Workers Union, Loc. 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 initiative.”). Federal question jurisdiction 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 any facts demonstrating a federal law claim, does not create federal subject matter jurisdiction. See Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1188- 89 (2d Cir. 1996). Insofar as Plaintiff invokes the court’s federal question jurisdiction and asserts violations of his federally protected rights, the court construes the complaint as asserting a claim under 42 U.S.C. § 1983. To state a claim under section 1983, a plaintiff must allege both that: (1) a right
secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). Private parties therefore generally are not liable under the statute. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties.”). “[T]he under-color-of-state-law element of [Section] 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted). Plaintiff’s sister is a private actor who is not alleged to work for any state or other government body, a necessary component of a Section 1983 claim. See 42 U.S.C. § 1983 (providing that a claim for relief under Section 1983 requires factual allegations showing that a defendant acted under the color of a state “ statute, ordinance, regulation, custom or usage”)
Plaintiff’s assertion that his sister at one point worked for the Bronx DA’s Office does not suggest that she is acting under color of state law in her capacity as executrix of their mother’s estate. Plaintiff thus has not stated a claim against Defendant under Section 1983, and the facts alleged do not give rise to any other claims arising under federal law or suggest a violation of Plaintiff’s federally protected rights. Diversity of citizenship jurisdiction Plaintiff also does not allege facts demonstrating that the Court has diversity jurisdiction over 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). 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) (citation and internal quotation marks omitted). Plaintiff indicates in the complaint that both he and Defendant reside in New York, a factual situation that precludes complete diversity of citizenship. B. Leave to amend 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. CONCLUSION Plaintiff’s complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
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 Court directs the Clerk of Court to enter judgment. SO ORDERED. Dated: January 11, 2024 New York, New York
/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge