UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ARTHUR EDWARD SMITH, Plaintiff, -against- 22-CV-4994 (LTS) J.P. MORGAN CHASE BANK, N.A.; J.P. ORDER TO AMEND MORGAN CHASE BANK & CO d/b/a CHASE BANK (corporately), Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, brings this action under 42 U.S.C. § 1981, alleging that Defendants violated his constitutional rights. By order dated July 15, 2022, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), 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 IFP 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. 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 claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible – not merely
possible – that the pleader is entitled to relief. Id. BACKGROUND The following facts are drawn from the complaint. On January 31, 2022, Plaintiff “online deposited” his paycheck at a Chase branch, something he had previously done without incident. In the past, Plaintiff’s check would clear after two days. Instead, in this instance, a Chase employee stamped on the back of the check, “Bad Check; Fraud Alert; Do not Cash I,” and put a “10 day hold” on it. (Id. ¶¶ 1-2.) According to Plaintiff, this occurrence was “preponderantly based on racial discrimination,” and thus “violative of his federal civil rights.” (Id.) Plaintiff does not identify his race in his pleading. On February 1, 2022, Plaintiff “contacted Chase Bank customer service” five times. A bank representative said that because the “process of processing the check had started,” there was “nothing [she] could do.” (Id. ¶ 3.) Plaintiff “let the rep have . . . [a] ‘piece of [his] mind,’” and she “abruptly hung up.” (Id. ¶ 4.) Plaintiff was unable to access the funds for ten days, which
rendered him unable to pay bills and “worsen[ed]” his “hardship.” (Id. at 6, 8.) Plaintiff invokes 42 U.S.C. § 1981, and also asserts, under the Court’s supplemental jurisdiction, 28 U.S.C. § 1367, a state law claim of intentional infliction of emotional distress. (Id. at 3.) Plaintiff seeks money damages. (Id.) After Plaintiff filed his complaint, he filed a motion to add to his complaint two exhibits — a copy of the back of the canceled check and a letter from Defendant stating that Plaintiff’s check was held because it “required additional review.” (ECF 5.) DISCUSSION Plaintiff brings this action under 42 U.S.C. § 1981. Section 1981 prohibits discrimination on the basis of race, color, and ethnicity when making and enforcing contracts. See CBOCS W., Inc. v. Humphries, 533 U.S. 442,445 (2008). Claims under section 1981 can be brought against
public or private entities, so long as the parties formed a contract. See Johnson v. City of New York, 669 F. Supp. 2d 444, 449 (S.D.N.Y. 2009). To state a claim of discrimination under section 1981, a plaintiff must allege facts showing that: “(1) [the] plaintiff[] [is a] member[] of a racial minority; (2) [the] defendant[’s] intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute’s enumerated activities.” Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). “[A] plaintiff must . . . plead . . . that, but for race, [the plaintiff] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n of African Am.- Owned Media, 140 S. Ct. 1009, 1019 (2020). Thus, for a claim of race discrimination under Section 1981, “it is insufficient to merely plead that race was a motivating factor in the discriminatory action.” Brown v. Montefiore Med. Ctr., No. 19-CV-11474, 2021 WL 1163797, at *5 (S.D.N.Y. Mar. 25, 2021) (citing Comcast Corp., 140 S. Ct. at 1017-18). Here, Plaintiff asserts that Defendants discriminated against him because of his race. In the complaint, however, Plaintiff does not identify his race, and he does not provide any facts
suggesting that his race was a motivating factor in what occurred, much less that, “but for” his race, the events giving rise to this complaint would not have occurred. Because Plaintiff does not set forth facts in support of his claim of race discrimination, his allegations are conclusory, and he fails to state a claim of race discrimination under section 1981.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ARTHUR EDWARD SMITH, Plaintiff, -against- 22-CV-4994 (LTS) J.P. MORGAN CHASE BANK, N.A.; J.P. ORDER TO AMEND MORGAN CHASE BANK & CO d/b/a CHASE BANK (corporately), Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, brings this action under 42 U.S.C. § 1981, alleging that Defendants violated his constitutional rights. By order dated July 15, 2022, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), 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 IFP 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. 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 claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible – not merely
possible – that the pleader is entitled to relief. Id. BACKGROUND The following facts are drawn from the complaint. On January 31, 2022, Plaintiff “online deposited” his paycheck at a Chase branch, something he had previously done without incident. In the past, Plaintiff’s check would clear after two days. Instead, in this instance, a Chase employee stamped on the back of the check, “Bad Check; Fraud Alert; Do not Cash I,” and put a “10 day hold” on it. (Id. ¶¶ 1-2.) According to Plaintiff, this occurrence was “preponderantly based on racial discrimination,” and thus “violative of his federal civil rights.” (Id.) Plaintiff does not identify his race in his pleading. On February 1, 2022, Plaintiff “contacted Chase Bank customer service” five times. A bank representative said that because the “process of processing the check had started,” there was “nothing [she] could do.” (Id. ¶ 3.) Plaintiff “let the rep have . . . [a] ‘piece of [his] mind,’” and she “abruptly hung up.” (Id. ¶ 4.) Plaintiff was unable to access the funds for ten days, which
rendered him unable to pay bills and “worsen[ed]” his “hardship.” (Id. at 6, 8.) Plaintiff invokes 42 U.S.C. § 1981, and also asserts, under the Court’s supplemental jurisdiction, 28 U.S.C. § 1367, a state law claim of intentional infliction of emotional distress. (Id. at 3.) Plaintiff seeks money damages. (Id.) After Plaintiff filed his complaint, he filed a motion to add to his complaint two exhibits — a copy of the back of the canceled check and a letter from Defendant stating that Plaintiff’s check was held because it “required additional review.” (ECF 5.) DISCUSSION Plaintiff brings this action under 42 U.S.C. § 1981. Section 1981 prohibits discrimination on the basis of race, color, and ethnicity when making and enforcing contracts. See CBOCS W., Inc. v. Humphries, 533 U.S. 442,445 (2008). Claims under section 1981 can be brought against
public or private entities, so long as the parties formed a contract. See Johnson v. City of New York, 669 F. Supp. 2d 444, 449 (S.D.N.Y. 2009). To state a claim of discrimination under section 1981, a plaintiff must allege facts showing that: “(1) [the] plaintiff[] [is a] member[] of a racial minority; (2) [the] defendant[’s] intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute’s enumerated activities.” Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). “[A] plaintiff must . . . plead . . . that, but for race, [the plaintiff] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n of African Am.- Owned Media, 140 S. Ct. 1009, 1019 (2020). Thus, for a claim of race discrimination under Section 1981, “it is insufficient to merely plead that race was a motivating factor in the discriminatory action.” Brown v. Montefiore Med. Ctr., No. 19-CV-11474, 2021 WL 1163797, at *5 (S.D.N.Y. Mar. 25, 2021) (citing Comcast Corp., 140 S. Ct. at 1017-18). Here, Plaintiff asserts that Defendants discriminated against him because of his race. In the complaint, however, Plaintiff does not identify his race, and he does not provide any facts
suggesting that his race was a motivating factor in what occurred, much less that, “but for” his race, the events giving rise to this complaint would not have occurred. Because Plaintiff does not set forth facts in support of his claim of race discrimination, his allegations are conclusory, and he fails to state a claim of race discrimination under section 1981. 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 light of Plaintiff’s pro se status, the Court grants Plaintiff 60 days’ leave to amend his complaint to detail his claim that he was discriminated against in the creation or enforcement of a contract due to his race.1
1 A district court may decline to exercise supplemental jurisdiction over state-law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). It is not clear that Plaintiff can state a federal claim of which the Court has original jurisdiction. The Court will decide at a later stage whether to exercise its supplemental jurisdiction of Plaintiff’s state-law claim. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of section 1367 Plaintiff is granted leave to amend his complaint to provide more facts about his claims.2 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 all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information 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 and how; when and where such violations occurred; and why Plaintiff is entitled to relief. 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.
‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.’” (quoting City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))). 2 Plaintiff may attach the exhibits referenced in his motion to the amended complaint should he wish to do so. It is not required that he do so, however, because at the pleading stage, Plaintiff need not prove his allegations. What the Court requires from Plaintiff are sufficient facts to state a claim of discrimination under section 1981. 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 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-4994 (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 will be dismissed for failure to state a claim upon which relief may be granted. The motion to submit exhibits is granted to the extent set forth in this order. The Clerk of Court is directed to terminate it. (ECF 5.) 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. 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 22, 2022 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
_____CV_______________ (Include case number if one has been Write the full name of each plaintiff. assigned)
AMENDED -against-
COMPLAINT
Do you want a jury trial? ☐ Yes ☐ No
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 II.
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. 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 ☐ 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. 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. I 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: ☐ Yes ☐ No 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.