Opinion
5:18-CV-01239 (MAD/TWD)
11-07-2018
DARELL HARLOW, Plaintiff, v. ALLEN REBECCA HEARD, PROGRESSIVE INSURANCE COMPANY, Defendants.
APPEARANCES: DARELL HARLOW 18-B-1614 Plaintiff pro se Attica Correctional Facility Box 149 Attica, New York 14011
APPEARANCES: DARELL HARLOW
18-B-1614
Plaintiff pro se
Attica Correctional Facility
Box 149
Attica, New York 14011 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review the complaint in this 42 U.S.C. § 1983 civil rights action brought by pro se Plaintiff Darell Harlow against Defendants Allen Rebecca Heard ("Heard") and Progressive Insurance Company ("Progressive"). (Dkt. No. 1.) Plaintiff has also filed a second application to proceed in forma pauperis ("IFP Application"), and a motion for appointment of counsel. (Dkt. Nos. 3, 5.)
I. PLAINTIFF'S IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's IFP Application (Dkt. No. 5), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's IFP Application (Dkt. No. 5) is granted.
II. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Additionally, if a court "determines at any time that it lacks subject-matter jurisdiction, the Court must dismiss the action." Rule 12(h)(3) of the Federal Rules of Civil Procedure; see also Widad v. Brooklyn Public Library, No. 15-CV-4312 (MKB), 2015 WL 7159796, at *1 (E.D.N.Y. Nov. 13, 2015) (dismissing state law claims for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(h)(1) on initial review pursuant to 28 U.S.C. § 1915(e)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
III. COMPLAINT
Plaintiff alleges that on November 15, 2015, Defendant Heard asked him to drive her Ford 150 truck to a mechanic and informed him that the truck would not go over thirty-five miles per hour and had been parked for a couple of months. (Dkt. No. 1 at 2.) As Plaintiff was driving to the mechanic, smoke and flames came up from under the hood of the truck toward the windshield. Id. Plaintiff stopped the truck and as he was reaching for the doorknob, there was an explosion sound as the hood popped up and Plaintiff saw a huge flame. Id. at 3.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Plaintiff lost his balance as he got out of the truck and heard a popping noise and felt pressure in his left hip. Id. He was able to back away from the truck before it burst into flames despite his hip injury. Id. Heard thereafter told Plaintiff that months earlier her ex-husband had poured sugar in the gas tank, and she had poured turpentine in the tank in an attempt to dissolve the sugar. Id. at 4. Plaintiff believes that was the most likely cause of the fire. Id. Plaintiff received medical treatment for his hip. Id.
Since the accident, Plaintiff has experienced nightmares, mood swings, permanent weakness in his left hip, loss of enjoyment of life, anxiety and depression, and erectile dysfunction. Id. at 5. Plaintiff filed a claim with Defendant Progressive for the injuries sustained as a result of the truck fire. Id. Progressive agreed to pay Plaintiff for his medical costs but not for his injury, pain and suffering, or psychological health care and counseling for his near death experience. Id. at 4-5. Plaintiff is seeking compensatory damages for his pain and suffering and psychological counseling. Id. at 6.
IV. FEDERAL SUBJECT MATTER JURISDICTION
"It is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equip. & Erec. Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal jurisdiction exists only when a "federal question" is presented (28 U.S.C. § 1331), or where there is "diversity of citizenship" and the amount in controversy exceeds $75,000 (28 U.S.C. § 1332). See Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 136 (2d Cir. 2002).
Plaintiff has commenced this action under 42 U.S.C. § 1983, which provides in relevant part:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .To state a claim under Section 1983, a plaintiff must allege that the challenged conduct (1) was "committed by a person acting under color of state law," and (2) "deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992).
It is well settled that "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted). A plaintiff must therefore allege facts showing that a defendant was either a state actor or a private party acting under color of state law with regard to the claim. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002); see also United States v. Int'l Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 941 F.2d 1292, 1295-96 (2d Cir. 1991) ("Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.'"). Private actors have been found to engage in "state action" when they are "willful participant[s] in joint activity with the State or its agents." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (citing United States v. Price, 383 U.S. 787, 794 (1966)).
Plaintiff has alleged no deprivation of rights secured by the United States Constitution or under federal law, nor has he alleged facts plausibly showing that either Defendant was a state actor or private party acting under color of state law in connection with his claims. Construed most generously, Plaintiff's complaint might be found to allege state law claims for negligence against Heard and wrongful denial of an insurance claim against Progressive. Therefore, the Court finds that there is no federal subject matter jurisdiction over Plaintiff's claims.
Plaintiff's complaint also fails to allege a basis for diversity jurisdiction under 28 U.S.C. § 1332. To establish jurisdiction under § 1332, diversity must be complete. See Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992) ("complete diversity [is required] between all plaintiffs and all defendants.") Therefore, Plaintiff must allege that he and all of the Defendants are citizens of different states. He has not done so, nor could he, since Plaintiff resides in New York, and Defendant Heard is also a New York resident. (Dkt. No. 1 at 1.)
Based upon the foregoing, the Court finds that there is no federal subject matter jurisdiction over Plaintiff's claims and recommends that the complaint be dismissed sua sponte upon initial review under 28 U.S.C. § 1915(e) and Fed.R.Civ.P. 12(h)(3) for lack of subject matter jurisdiction. Inasmuch as lack of subject matter jurisdiction is a substantive defect, Deuel v. Dalton, No. 1:11-CV-0637 (GTS/RFT), 2012 WL 235523, at *8 n.19 (N.D.N.Y. Jan. 25, 2013), the Court further recommends that the dismissal be without leave to amend.
V. PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has filed a motion for the appointment of counsel. (Dkt. No. 3.) The Court denies the motion as moot in light of its recommendation that Plaintiff's complaint be dismissed for lack of subject matter jurisdiction. Even if the Court were not recommending dismissal, a more fully developed record would be necessary before an assessment can be made as to whether counsel should be appointed. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997). The denial is without prejudice so that Plaintiff will not be precluded from making a subsequent request for appointment of counsel in the event the District Court allows the action to proceed or grants Plaintiffs' leave to file an amended complaint.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's second IFP Application (Dkt. No. 5) is GRANTED; and it is
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be sua sponte DISMISSED for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1915(e) and Fed.R.Civ.P. 12(h)(3) WITHOUT LEAVE TO AMEND; and it is hereby
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 3) is DENIED without prejudice as moot; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: November 7, 2018
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge