UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHARLIE WILLIAM KING, III, Plaintiff, 24-CV-6124 (LTS) -against- ORDER TO AMEND UNITED STATES OF AMERICA ARMY, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, brings this action asserting claims regarding his discharge from the United States Army. By order dated August 16, 2024, 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 – 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.
BACKGROUND The following are the only allegations in Plaintiff’s complaint. Plaintiff alleges: I do not have a record of service in the Army. Hospital said no record. Discharg need to be upgraded to be able to retire. (ECF 1 at 2.)1 Plaintiff further indicates: I ser. In the United State of Army in the America. Did have a [illegible]. My discharge want 90. I was told in order to upgrad my discharge I need to open a case in the Federal Court House. The I can changed my discharged and Retire. I’m from Baltimore City Maryland. My mothers Mary Alice King is Death so we is kids move to her home District of Columbia to live. (Id. at 5.) DISCUSSION Federal law authorizes “the Secretary of a military department [to] correct any military record when the Secretary considers it necessary to correct an error or remove an injustice,” 10 U.S.C. § 1552, and provides for the Secretary of Defense to review denials of such requests, 10 U.S.C. § 1553a. Other federal laws and regulations apply, for example, to review of discharge decisions, separation determinations based on medical conditions, and certain courts-marshal
1 The Court quotes from the complaint verbatim. All spelling, punctuation and grammar are as in the original unless noted otherwise. determinations. The U.S. Department of Veterans Affairs offers resources for making an initial administrative request for a discharge upgrade or record correction.2 Federal district courts have jurisdiction, under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), to provide limited review of certain administrative decisions involving military
discharge or records. See, e.g., Falk v. Sec’y of the Army, 870 F.2d 941, 945 (2d Cir. 1989) (“In addition to the requirements of A.P.A. § 706, we must give the Records Board’s ruling increased deference because of the military context in which this appeal arises.”) Here, Plaintiff’s complaint does not provide sufficient information (about his military service and separation from service, or about any administrative requests that he has filed
or decisions that he has received) to enable the Court to determine the nature of his claim and whether it has jurisdiction of his claim. Rule 8 of the Federal Rules of Civil Procedure 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 complaint must include a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8. Plaintiff’s complaint does not comply with Rule 8 because he does not include enough information to allow defendant to respond or the Court to determine whether he is entitled to relief.
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
2 Request A Discharge Upgrade Or Correction | Veterans Affairs (va.gov) (accessed Aug. 16, 2024). defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011). Because Plaintiff may be able to allege additional facts showing that he is seeking judicial review of an administrative determination, the Court grants Plaintiff 60 days’ leave to amend his complaint to detail his claims.
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: 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 his federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief. If Plaintiff has received any decision of the Department of Defense Discharge Appeal Review Board (“DARB”), the Army Board for the Correction of Military Records (“ABCMR”), or any other relevant administrative determination, he may wish to include a copy of such decisions.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHARLIE WILLIAM KING, III, Plaintiff, 24-CV-6124 (LTS) -against- ORDER TO AMEND UNITED STATES OF AMERICA ARMY, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, brings this action asserting claims regarding his discharge from the United States Army. By order dated August 16, 2024, 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 – 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.
BACKGROUND The following are the only allegations in Plaintiff’s complaint. Plaintiff alleges: I do not have a record of service in the Army. Hospital said no record. Discharg need to be upgraded to be able to retire. (ECF 1 at 2.)1 Plaintiff further indicates: I ser. In the United State of Army in the America. Did have a [illegible]. My discharge want 90. I was told in order to upgrad my discharge I need to open a case in the Federal Court House. The I can changed my discharged and Retire. I’m from Baltimore City Maryland. My mothers Mary Alice King is Death so we is kids move to her home District of Columbia to live. (Id. at 5.) DISCUSSION Federal law authorizes “the Secretary of a military department [to] correct any military record when the Secretary considers it necessary to correct an error or remove an injustice,” 10 U.S.C. § 1552, and provides for the Secretary of Defense to review denials of such requests, 10 U.S.C. § 1553a. Other federal laws and regulations apply, for example, to review of discharge decisions, separation determinations based on medical conditions, and certain courts-marshal
1 The Court quotes from the complaint verbatim. All spelling, punctuation and grammar are as in the original unless noted otherwise. determinations. The U.S. Department of Veterans Affairs offers resources for making an initial administrative request for a discharge upgrade or record correction.2 Federal district courts have jurisdiction, under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), to provide limited review of certain administrative decisions involving military
discharge or records. See, e.g., Falk v. Sec’y of the Army, 870 F.2d 941, 945 (2d Cir. 1989) (“In addition to the requirements of A.P.A. § 706, we must give the Records Board’s ruling increased deference because of the military context in which this appeal arises.”) Here, Plaintiff’s complaint does not provide sufficient information (about his military service and separation from service, or about any administrative requests that he has filed
or decisions that he has received) to enable the Court to determine the nature of his claim and whether it has jurisdiction of his claim. Rule 8 of the Federal Rules of Civil Procedure 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 complaint must include a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8. Plaintiff’s complaint does not comply with Rule 8 because he does not include enough information to allow defendant to respond or the Court to determine whether he is entitled to relief.
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
2 Request A Discharge Upgrade Or Correction | Veterans Affairs (va.gov) (accessed Aug. 16, 2024). defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011). Because Plaintiff may be able to allege additional facts showing that he is seeking judicial review of an administrative determination, the Court grants Plaintiff 60 days’ leave to amend his complaint to detail his claims.
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: 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 his federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief. If Plaintiff has received any decision of the Department of Defense Discharge Appeal Review Board (“DARB”), the Army Board for the Correction of Military Records (“ABCMR”), or any other relevant administrative determination, he may wish to include a copy of such decisions. 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. The Court further cautions Plaintiff to write legibly so that the Court can consider all of the information he provides. 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 sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 24-CV-6124 (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 he cannot show good cause to excuse such failure, the complaint must be dismissed for failure to state a claim upon which relief may be granted. Plaintiff may receive court documents by email by completing the attached form, Consent to Electronic Service.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 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: August 19, 2024 New York, New York
/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge
3 If Plaintiff consents to receive documents by email, Plaintiff will no longer receive documents in this case by regular mail. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CVE TT a (clu ber if has b Write the full name of each plaintiff. evened) me eNews
against AMENDED
□ COMPLAINT ee Do you want a jury trial? LlYes ULINo
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 Il.
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
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 L] 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 Zip Code
Telephone Number Email Address (if available) 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 Work Address (or other address where defendant may be served)
County, City State Zip Code Defendant 3: First Name Last Name
Current Work Address (or other address where defendant may be served)
County, City State Zip Code Defendant 4: First Name Last Name
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. 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. 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. 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
Telephone Number Email Address (if available)
I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes [LINo 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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