Tchaptched v. Mashood

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID D. TCHAPTCHED, Plaintiff, 23-CV-9704 (LTS) -againstORDER OF DISMISSAL MASHOOD, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, brings this action invoking the Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332 . By order dated November 3, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is, without prepayment of fees. For the reasons set forth in this order, the Court dismisses the action for lack of subject matter jurisdiction. STANDARD OF REVIEW The Court must dismiss a complaint brought IFP, 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 Plaintiff David Tchaptched alleges the following facts. In January 2021, Defendant “Mashood,” whose full name is not identified, did not have a place to stay, so Plaintiff allowed him to stay in Plaintiff’s apartment. (ECF 1 at 5.) In February 2021, when Mashood moved out of Plaintiff’s apartment, he stole numerous household items, including mattresses, a table, curtains, kitchenware, electronics, and more. Plaintiff asserts that Mashood “emptied” his apartment. (Id. at 6.) When Plaintiff located Mashood and asked for the return of his property, Mashood refused to return any of it and threatened Plaintiff. (Id.) Plaintiff asks the Court to order that Defendant Mashood’s apartment be searched and that Plaintiff’s property be returned to him. 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, 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 & 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 , 118889 (2d Cir. 1996). Plaintiff does not invoke the Court’s federal question jurisdiction, and his allegations that a private party stole his property do not suggest a violation of any federal law. Plaintiff’s request that the Court investigate Defendant’s actions is also beyond the scope of the Court’s authority. See Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972) (holding that prosecutors have discretion whether to bring criminal actions, and they are “immune from control or interference by citizen or court”). Diversity jurisdiction Plaintiff does not allege facts demonstrating that the Court has diversity jurisdiction of 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. (ECF 1 2-3.) Because both parties are alleged to be citizens of New York, there is no diversity of citizenship. Generally, a district court should allow a pro se plaintiff an opportunity to amend a complaint in order “to drop dispensable nondiverse defendants whose presence would defeat diversity of citizenship.” Jaser v. N.Y. Prop. Ins. Underwriting Ass’n, 815 F.2d 240, 243 (2d Cir. 1987). Here, Plaintiff’s claim is asserted against only one defendant, who – like Plaintiff – is alleged to be a citizen of New York. It would therefore be futile to grant Plaintiff leave to amend his complaint to replead his allegations regarding diversity of citizenship.1 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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment in this matter. SO ORDERED. Dated: December 5, 2023 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge 1 Nothing in this order prevents Plaintiff from pursuing his claims in a state court of general jurisdiction.