UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID S. OWENS, Plaintiff, -against- 18-CV-10278 (CM) JOHN DOE OF STORE VINTAGE WINE AND SPIRITS; JANE DOE DOCTOR OF ORDER OF DISMISSAL MOUNT SINAI SAINT LUKE’S HOSPITAL; JOHN DOE DOCTOR OF BELLEVUE HOSPITAL, Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, currently incarcerated in Auburn Correctional Facility, brings this pro se action alleging that Defendants violated his constitutional rights. By order dated May 28, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.1 STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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
1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1). 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 Plaintiff David S. Owens alleges the following facts. On December 22, 2015, he “was regretfully attempting” to shoplift from Vintage Wine and Spirits, a store located in Manhattan.
As Plaintiff left the store with a box of bottles of wine, a person from the store followed Plaintiff outside to the sidewalk. Plaintiff put the box on the sidewalk, and although he “was in no way aggressive, or violent toward the person,” the person swung a stick at Plaintiff. The person struck Plaintiff on the shoulder with the stick and then, as Plaintiff raised his arm to protect himself, the person struck Plaintiff again on his finger, breaking it. Plaintiff received treatment for his broken finger at both Mount Sinai St. Luke’s Hospital and Bellevue Hospital. The treatment that Plaintiff received has resulted in his loss of the full range of motion of his finger, the loss of strength in his ability to grip with that hand, and a visible deformity. DISCUSSION
Plaintiff brings this action for personal injury against the person who broke his finger and for medical malpractice against the doctors who treated him for his injury. Plaintiff seeks $1,000,000.00 in monetary damages and the arrest of the person who broke his finger. 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, 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. “‘[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 & 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)); 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 US. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative ....”). 1. 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 plaintiffs 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). Plaintiff does not invoke any federal law, and the allegations in his complaint do not suggest a claim that arises under federal law. The Court therefore cannot exercise federal question jurisdiction over his claims. De Diversity Jurisdiction Plaintiff asserts claims of medical malpractice and personal injury. These claims arise under state law, and a federal district court has jurisdiction to consider claims under state law only where the court has diversity jurisdiction.
But Plaintiff 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 Defendants reside in New York, precluding complete diversity of citizenship. B.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID S. OWENS, Plaintiff, -against- 18-CV-10278 (CM) JOHN DOE OF STORE VINTAGE WINE AND SPIRITS; JANE DOE DOCTOR OF ORDER OF DISMISSAL MOUNT SINAI SAINT LUKE’S HOSPITAL; JOHN DOE DOCTOR OF BELLEVUE HOSPITAL, Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, currently incarcerated in Auburn Correctional Facility, brings this pro se action alleging that Defendants violated his constitutional rights. By order dated May 28, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.1 STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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
1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1). 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 Plaintiff David S. Owens alleges the following facts. On December 22, 2015, he “was regretfully attempting” to shoplift from Vintage Wine and Spirits, a store located in Manhattan.
As Plaintiff left the store with a box of bottles of wine, a person from the store followed Plaintiff outside to the sidewalk. Plaintiff put the box on the sidewalk, and although he “was in no way aggressive, or violent toward the person,” the person swung a stick at Plaintiff. The person struck Plaintiff on the shoulder with the stick and then, as Plaintiff raised his arm to protect himself, the person struck Plaintiff again on his finger, breaking it. Plaintiff received treatment for his broken finger at both Mount Sinai St. Luke’s Hospital and Bellevue Hospital. The treatment that Plaintiff received has resulted in his loss of the full range of motion of his finger, the loss of strength in his ability to grip with that hand, and a visible deformity. DISCUSSION
Plaintiff brings this action for personal injury against the person who broke his finger and for medical malpractice against the doctors who treated him for his injury. Plaintiff seeks $1,000,000.00 in monetary damages and the arrest of the person who broke his finger. 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, 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. “‘[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 & 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)); 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 US. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative ....”). 1. 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 plaintiffs 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). Plaintiff does not invoke any federal law, and the allegations in his complaint do not suggest a claim that arises under federal law. The Court therefore cannot exercise federal question jurisdiction over his claims. De Diversity Jurisdiction Plaintiff asserts claims of medical malpractice and personal injury. These claims arise under state law, and a federal district court has jurisdiction to consider claims under state law only where the court has diversity jurisdiction.
But Plaintiff 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 Defendants reside in New York, precluding complete diversity of citizenship. B. Private Prosecution Plaintiff states, “perhaps you should cause the arrest of the person which broke my finger for the assault of me.” A private individual cannot prosecute a criminal action in federal court. See Leeke v. Timmerman, 454 U.S. 83 (1981) (prisoners lack standing to seek the issuance of an arrest warrant); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); United States ex rel. Farmer v. Kaufman, 750 F. Supp. 106, 108 (S.D.N.Y. 1990); New York v. Muka, 440 F.
Supp. 33, 36 (N.D.N.Y. 1977). Furthermore, because prosecutors possess discretionary authority to bring criminal actions, 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); Muka, 440 F. Supp. at 36. 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 The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. 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 Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002. 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: July 1, 2019 , New York, New York hie. Iu Wyk Chief United States District Judge