UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHN JAY LACEY, Plaintiff, 24-CV-2406 (LTS) -against- ORDER OF DISMISSAL SURE SHOT BOOKS PUBLISHERS, LLC, WITH LEAVE TO REPLEAD Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who currently is incarcerated at the Indiana State Reformatory in Pendleton, Indiana, brings this action, pro se, alleging that Defendant, an entity located in Nyack, New York, violated provisions of the New York Penal Law. By order dated April 25, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 For the following reasons, the Court dismisses the complaint, with 30 days’ leave to replead. 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
1 Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1). 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). BACKGROUND The following facts are drawn from the complaint. At an unspecified time, Plaintiff “placed several purchase orders” with Defendant for books, and for subscriptions to magazines
and newspapers. (ECF 1 at 1-2.) Even after “several weeks had passed,” however, Plaintiff did not receive any issues of the Poughkeepsie Journal newspaper or of the Poets and Writers magazine. (Id. at 2.) Plaintiff made “several attempts” to notify Defendant “of issues of nondelivery,” but the problem was apparently not resolved. (Id.) In November 2023, Plaintiff placed another order with Defendant for a 2024 Product Catalog, and for subscriptions to Billboard magazine, the Poughkeepsie Journal, and to the New York Post. (Id. at 2.) Plaintiff sent payment of $321.59, which was the cost he calculated from Defendant’s price list. (Id.) Plaintiff received only some of the issues of the Poughkeepsie Journal, and none of the other publications. In response to Plaintiff’s inquiry about his order, Defendant claimed that it never received an order from Plaintiff for the Product Catalog, and that
Plaintiff had sent insufficient payment for the New York Post. According to Plaintiff, Defendant “refused to honor the payment,” and “ignored” the subscriptions to Billboard and the Poughkeepsie Journal. (Id.) “To date,” Plaintiff has not received “further issues” of the Poughkeepsie Journal, nor any issues of Poets and Writers or of Billboard. (Id. at 4.) Plaintiff alleges that Defendant committed petit larceny and attempted petit larceny, in violation of New York Penal Law § 155.25 and § 110/155.25, and he seeks $900 in compensatory damages. (Id. at 4.) 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, a federal district court has jurisdiction only when a “federal question” is presented or when the plaintiff and the 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, 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)); 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.”). To support 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, 1188-89 (2d Cir. 1996). The allegations in Plaintiff’s complaint regarding Defendant’s failure to send him the written materials that he had paid for do not implicate a claim under federal law. Thus, federal question jurisdiction is lacking. Plaintiff also does not allege facts demonstrating that the Court has diversity of citizenship jurisdiction of this action that would enable the Court to hear state law claims.2 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). Generally, there is a rebuttable presumption that a prisoner retains his pre-incarceration state citizenship rather than acquiring a new state citizenship. See Housand v. Heiman, 594 F.2d 923, 925 n.5 (2d Cir.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHN JAY LACEY, Plaintiff, 24-CV-2406 (LTS) -against- ORDER OF DISMISSAL SURE SHOT BOOKS PUBLISHERS, LLC, WITH LEAVE TO REPLEAD Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who currently is incarcerated at the Indiana State Reformatory in Pendleton, Indiana, brings this action, pro se, alleging that Defendant, an entity located in Nyack, New York, violated provisions of the New York Penal Law. By order dated April 25, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 For the following reasons, the Court dismisses the complaint, with 30 days’ leave to replead. 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
1 Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1). 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). BACKGROUND The following facts are drawn from the complaint. At an unspecified time, Plaintiff “placed several purchase orders” with Defendant for books, and for subscriptions to magazines
and newspapers. (ECF 1 at 1-2.) Even after “several weeks had passed,” however, Plaintiff did not receive any issues of the Poughkeepsie Journal newspaper or of the Poets and Writers magazine. (Id. at 2.) Plaintiff made “several attempts” to notify Defendant “of issues of nondelivery,” but the problem was apparently not resolved. (Id.) In November 2023, Plaintiff placed another order with Defendant for a 2024 Product Catalog, and for subscriptions to Billboard magazine, the Poughkeepsie Journal, and to the New York Post. (Id. at 2.) Plaintiff sent payment of $321.59, which was the cost he calculated from Defendant’s price list. (Id.) Plaintiff received only some of the issues of the Poughkeepsie Journal, and none of the other publications. In response to Plaintiff’s inquiry about his order, Defendant claimed that it never received an order from Plaintiff for the Product Catalog, and that
Plaintiff had sent insufficient payment for the New York Post. According to Plaintiff, Defendant “refused to honor the payment,” and “ignored” the subscriptions to Billboard and the Poughkeepsie Journal. (Id.) “To date,” Plaintiff has not received “further issues” of the Poughkeepsie Journal, nor any issues of Poets and Writers or of Billboard. (Id. at 4.) Plaintiff alleges that Defendant committed petit larceny and attempted petit larceny, in violation of New York Penal Law § 155.25 and § 110/155.25, and he seeks $900 in compensatory damages. (Id. at 4.) 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, a federal district court has jurisdiction only when a “federal question” is presented or when the plaintiff and the 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, 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)); 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.”). To support 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, 1188-89 (2d Cir. 1996). The allegations in Plaintiff’s complaint regarding Defendant’s failure to send him the written materials that he had paid for do not implicate a claim under federal law. Thus, federal question jurisdiction is lacking. Plaintiff also does not allege facts demonstrating that the Court has diversity of citizenship jurisdiction of this action that would enable the Court to hear state law claims.2 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). Generally, there is a rebuttable presumption that a prisoner retains his pre-incarceration state citizenship rather than acquiring a new state citizenship. See Housand v. Heiman, 594 F.2d 923, 925 n.5 (2d Cir. 1979); Blumatte v. Quinn, 521 F. Supp. 2d 308, 312 n.3 (S.D.N.Y. 2007). Plaintiff does not provide any facts regarding his citizenship. 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 alleges that he sent Defendant $321.59 for an
order that was not completely fulfilled, for which he seeks $900 in damages. Because Plaintiff does not allege that his claim satisfies the statutory jurisdictional amount of $75,000, this Court lacks diversity of citizenship jurisdiction over his claims.
2 Plaintiff seeks to assert claims under a state criminal statute, but he cannot initiate the arrest and prosecution of any individual or entity in this court because “the decision to prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Nor can Plaintiff or the Court direct prosecuting attorneys to initiate a criminal proceeding against Defendant, because prosecutors possess discretionary authority to bring criminal actions, and they are “immune from control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). Nothing precludes Plaintiff from pursuing his claims against Defendant in the appropriate state court. This Court takes no position on the merits of any action Plaintiff might file in state court. 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)). In abundance of caution, the Court grants Plaintiff 30 days’ leave to amend his complaint to detail his claims. If Plaintiff does not file an amended complaint within the time allowed, the Court will direct the Clerk of Court to enter judgment in this action. CONCLUSION Plaintiff’s complaint, filed IFP 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 grants Plaintiff 30 days’ leave
to replead his claims in an amended complaint to show that the court has subject matter jurisdiction to consider his claims. 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 hold this matter open on the docket until a civil judgment is entered. SO ORDERED. Dated: May 28, 2024 New York, New York
/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
(In the space above enter the full name(s) of the plaintiff(s).) AMENDED COMPLAINT -against- under the Civil Rights Act, 42 U.S.C. § 1983
Jury Trial: O Yes oO No (check one) Ci CD
(dn the space above enter the full name(s) of the defendant(s). Ifyou cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed in the above caption must be identical to those contained in Part I. Addresses should not be included here.) I. Parties in this complaint: A. List your name, identification number, and the name and address of your current place of confinement. Do the same for any additional plaintiffs named. Attach additional sheets of paper as necessary. Plaintiff’ s Name WH eee Current Institution, Address eee
B. List all defendants’ names, positions, places of employment, and the address where each defendant may be served. Make sure that the defendant(s) listed below are identical to those contained in the above caption. Attach additional sheets of paper as necessary.
Defendant No. 1 Name —s—aiesesesa (aes Where Currently Employed eee Address ee
Address __________________________________________________________ _________________________________________________________________ Defendant No. 3 Name ___________________________________________ Shield #_________ Where Currently Employed __________________________________________ Address __________________________________________________________ _________________________________________________________________ Who did what? Defendant No. 4 Name ___________________________________________ Shield #_________ Where Currently Employed __________________________________________ Address __________________________________________________________ _________________________________________________________________ Defendant No. 5 Name ___________________________________________ Shield #_________ Where Currently Employed __________________________________________ Address __________________________________________________________ _________________________________________________________________ II. Statement of Claim: State as briefly as possible the facts of your case. Describe how each of the defendants named in the caption of this complaint is involved in this action, along with the dates and locations of all relevant events. You may wish to include further details such as the names of other persons involved in the events giving rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary. A. In what institution did the events giving rise to your claim(s) occur? _______________________________________________________________________________ _______________________________________________________________________________ B. Where in the institution did the events giving rise to your claim(s) occur? _______________________________________________________________________________ C. What date and approximate time did the events giving rise to your claim(s) occur? _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ D. Facts:__________________________________________________________________________ _____________________________________________________________________________________ What happened _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ Was _____________________________________________________________________________________ anyone else _____________________________________________________________________________________ involved? _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________
Who else saw what happened? III. Injuries: If you sustained injuries related to the events alleged above, describe them and state what medical treatment, if any, you required and received. ______________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ ______________________________________________________________________________________ IV. Exhaustion of Administrative Remedies: The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Administrative remedies are also known as grievance procedures. A. Did your claim(s) arise while you were confined in a jail, prison, or other correctional facility? Yes ____ No ____ events giving rise to your claim(s). _____________________________________________________________________________________ _____________________________________________________________________________________ ______________________________________________________________________________________ B. Does the jail, prison or other correctional facility where your claim(s) arose have a grievance procedure? Yes ____ No ____ Do Not Know ____ C. Does the grievance procedure at the jail, prison or other correctional facility where your claim(s) arose cover some or all of your claim(s)? Yes ____ No ____ Do Not Know ____ If YES, which claim(s)? _______________________________________________________________________________ D. Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) arose? Yes ____ No ____ If NO, did you file a grievance about the events described in this complaint at any other jail, prison, or other correctional facility?
Yes ____ No ____ E. If you did file a grievance, about the events described in this complaint, where did you file the grievance? _______________________________________________________________________________ 1. Which claim(s) in this complaint did you grieve? ______________________________________________________________________________ _______________________________________________________________________________ 2. What was the result, if any? _______________________________________________________________________________ _______________________________________________________________________________ 3. What steps, if any, did you take to appeal that decision? Describe all efforts to appeal to the highest level of the grievance process. _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ F. If you did not file a grievance: 1. If there are any reasons why you did not file a grievance, state them here: _________________________________________________________________________ ________________________________________________________________________ 2. If you did not file a grievance but informed any officials of your claim, state who you informed, when and how, and their response, if any:
G. Please set forth any additional information that is relevant to the exhaustion of your administrative remedies.
Note: You may attach as exhibits to this complaint any documents related to the exhaustion of your administrative remedies.
V. Relief: State what you want the Court to do for you (including the amount of monetary compensation, if any, that you are seeking and the basis for such amount).
Rev. 01/2010
VI. Previous lawsuits: A. Have you filed other lawsuits in state or federal court dealing with the same facts involved in this action?
Yes NO B. If your answer to A is YES, describe each lawsuit by answering questions | through 7 below. (If there is more than one lawsuit, describe the additional lawsuits on another sheet of paper, using the same format.) 1. Parties to the previous lawsuit: Plaintiff Defendants 2.Court (if federal court, name the district; if state court, name the county) 3. Docket or Index number Name of Judge assigned to your case. 5. Approximate date of filing lawsuit 6. Is the case still pending? Yes === No____> If NO, give the approximate date of disposition. 7. What was the result of the case? (For example: Was the case dismissed? Was there judgment in your favor? Was the case appealed?)
C. Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment? Yes No s —_——
D. If your answer to C is YES, describe each lawsuit by answering questions | through 7 below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using the same format.) 1. Parties to the previous lawsuit: Plaintiff Defendants
2. Court (if federal court, name the district; if state court, name the county) 3. Docket or Index number 4, Name of Judge assigned to your case. eee 5. Approximate date of filing lawsuit Rev. 01/2010
6. Is the case still pending? Yes ____ No ____ If NO, give the approximate date of disposition_________________________________ 7. What was the result of the case? (For example: Was the case dismissed? Was there judgment in your favor? Was the case appealed?) ______________________________ ________________________________________________________________________ _________________________________________________________________________ I declare under penalty of perjury that the foregoing is true and correct. Signed this day of , 20 . Signature of Plaintiff _____________________________________ Inmate Number _____________________________________ Institution Address _____________________________________ _____________________________________ _____________________________________ _____________________________________ Note: All plaintiffs named in the caption of the complaint must date and sign the complaint and provide their inmate numbers and addresses. I declare under penalty of perjury that on this _____ day of _________________, 20__, I am delivering this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for the Southern District of New York. Signature of Plaintiff: _____________________________________