UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

KENNETH JACKSON,

Plaintiff, 9:06-CV-0761 (GLS)(GHL) v. JAMES BOWEN, Sheriff; CORLISS NORMILE, Commissary Operator,

Defendants.

APPEARANCES: KENNETH JACKSON Plaintiff, pro se GARY L. SHARPE, DISTRICT JUDGE DECISION and ORDER I. Background The Clerk has sent to the Court a civil rights complaint submitted for filing by Kenneth Jackson. Dkt. No. 1. Jackson is presently incarcerated at Downstate Correctional Facility. Dkt. No. 5. Jackson has also filed an in forma pauperis application and an inmate authorization form. Dkt. Nos. 2, 6. The claim set forth in the complaint arises from state taxation of items purchased at New York state prison commissaries. Dkt. No. 1. For the reasons stated below, Jackson’s complaint is dismissed pursuant to

(e) and Rule 12(h)(3) of the Federal Rules of Civil Practice.

II. Discussion Consideration of whether a pro se plaintiff should be permitted to proceed in forma pauperis is a two-step process. First, the Court must

determine whether the plaintiff may commence the action without prepaying, in full, the $350.00 filing fee. The Court must then consider whether the causes of action stated in the complaint are frivolous or malicious or if they fail to state a claim upon which relief may be granted.

In the present case, the Court has determined that Jackson has satisfied the first test because his affidavit sets forth sufficient economic need. Dkt. No. 2. The Court must now consider whether the case should be dismissed

pursuant to

(e). Section 1915(e) directs that when a plaintiff seeks to proceed in forma pauperis, the Court: (2) [S]hall dismiss the case at any time if the court determines that - *** (B) 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. 2

(e)(2)(B). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the Court’s responsibility to

determine that a complaint may properly be maintained in the District before it may permit the plaintiff to proceed with his or her action in forma pauperis.

Federal courts are courts of limited jurisdiction whose power is limited strictly by Article III of the Constitution and congressional statute. A District

Court must dismiss an action whenever it appears that the Court lacks jurisdiction of the subject matter of the claims asserted. Fed.R.Civ.P. 12(h)(3). Lack of subject-matter jurisdiction is properly raised, sua sponte, by

the Court. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp.,

(2d Cir. 1997) (A district court may raise the issue of subject matter jurisdiction sua sponte.). The Tax Injunction Act,

(hereinafter “the Act”), states

that “the district courts shall not enjoin, suspend, or restrain the assessment, levy or collection of any tax under State law where a plain, speedy, and efficient remedy may be had in the courts of such State.” The Act has been

held to prohibit “declaratory as well as injunctive relief.” California v. Grace Brethren Church,

(1982). The Act has “been extended to civil rights actions brought pursuant to § 1983 through the principles of

3 comity.” Vjg Realty Corp. v. New York, No. 89-CV-1648,

, *2 (S.D.N.Y. June 7, 1990). The principles of comity also extend the effect of

the Act to damage actions.

“The Second Circuit has determined that New York provides taxpayers with several remedies affording them the opportunity to raise all constitutional challenges thereto, and that access to the federal courts is therefore barred by the Act and the principles of comity.” Sanzotta v.

Williams, No. 98-CV-0730,

, *2 (N.D.N.Y. May 27, 1998). Jackson is requesting monetary damages based on the assessment of New York state sales tax. Dkt. No. 1. The District Court is prohibited from

asserting subject-matter jurisdiction over this claim by the Act. III. Conclusion For the reasons stated above, the pleading, as presented to this Court, cannot be supported by any arguable basis in law and must therefore be

dismissed pursuant to

(e).1 WHEREFORE, it is hereby ORDERED, that Jackson’s complaint is dismissed pursuant to 28 U.S.C.

1 Although “the usual practice is to allow leave to replead a deficient complaint, see Fed.R.Civ.P. 15(a); see also Ronzani v. Sanofi, S.A.,

(2d Cir. 1990), such leave may be denied where amendment would be futile, see Ruffolo v. Oppenheimer & Co.,

(2d Cir. 1993) (per curiam) (“Where it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.”).” Price v. Hasly, No. 04-CV-0090S,

, *2 (W.D.N.Y. June 8, 2004). 4 § 1915(e), and it is further ORDERED, that in light of the ruling on the complaint filed herein, Jackson’s request to proceed in forma pauperis is denied as moot, and it is further ORDERED, that the Clerk serve a copy of this Order on Jackson by regular mail. IT IS SO ORDERED. October 30, 2006

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