UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK YESSUH SUHYES HUSSEY, Plaintiff, 23-CV-4373 (LTS) -against- ORDER OF DISMISSAL TIFFANY DORETHEA MCDUFFIE, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is currently detained in the Otis Bantum Correctional Center on Rikers Island, brings this action under

He sues New York County Defender Services attorney Tiffany Dorethea McDuffie. Plaintiff originally filed this action in the United States District Court for the Eastern District of New York. See Hussey v. McDuffie, No. 23-CV-2173 (PKC) (LB) (E.D.N.Y. May 16, 2023). This case is one of 60 cases Plaintiff filed in the Eastern District in recent months, including 43 cases filed on the same day. On May 16, 2023, the Eastern District transferred this action to this court. (ECF 5.) By order dated August 15, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.2

1 Plaintiff was detained in the Anna M. Kross Center on Rikers Island at the time he filed this action. 2 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See

(b)(1). Plaintiff did not submit a prisoner authorization with the complaint. By order dated May 31, 2023, the Court directed Plaintiff to either pay the $402.00 in fees or submit a prisoner authorization. (ECF 7.) The Court received Plaintiff’s prisoner authorization on July 18, 2023. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, 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.

(e)(2)(B), 1915A(b); see Abbas v. Dixon,

(2d Cir. 2007). The Court must also dismiss a complaint if 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,

(2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons,

(2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases,

(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 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(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,

(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,

. 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.

BACKGROUND Plaintiff states that the events giving rise to his claims occurred inside the New York State Supreme Court, Criminal Courthouse in Manhattan. The following allegations are taken

from the complaint. Defendant was representing Plaintiff in a criminal matter. On June 10, 2022, Plaintiff gave Defendant “6 lb[s] of paper work in a manilla folder of all original materials that I created, we agreed that she would mail my contents to my mailing address.” (ECF 1, at 4.) Defendant claimed that she mailed the materials, but Plaintiff maintains they did not arrive at address. Plaintiff alleges that Defendant “violated our agreement & kept my blueprints, solar, architecture & clothing designs. Along with logos & slogans & business ideas.” (Id.) Plaintiff seeks $10 million in damages. Plaintiff also includes as an attachment to his submission a separate complaint form that names McDuffie as the sole defendant, and alleges that, on November 11, 2022, she failed to have another individual at New York County Defender Services send Plaintiff his discovery

materials. (See id. at 12.) With respect to this claim, Plaintiff seeks $40,000,000. DISCUSSION A. Subject Matter Jurisdiction The subject matter jurisdiction of the federal district courts is limited and is set forth generally in

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.,

(2d Cir. 1994) (quoting Manway Constr. Co., Inc. v. Hous. Auth. of the City of Hartford,

(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.,

(1999) (“[S]Jubject-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.”

. 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,

, 734-35 (2d Cir. 2007) (quoting Empire Healthchoice Assur., Inc. v. McVeigh,

(2006)). Mere invocation of federal jurisdiction, without any facts demonstrating a federal law claim, does not create federal subject matter jurisdiction. See Nowak v. lronworkers Loc. 6 Pension Fund,

, 1188- 89 (2d Cir. 1996). Here, Plaintiff invokes the Court’s federal question jurisdiction, but he does not allege facts showing that the court can consider his claims under its federal question jurisdiction. Plaintiff asserts that his lawyer violated his rights, but a claim for relief under the federal civil rights statute,

, must allege facts showing that each defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.”

. Private parties therefore generally are not liable under the statute. Sykes v. Bank of America,

(2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’ n, 531 USS. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau,

(2d Cir. 2002)

(“[T]he United States Constitution regulates only the Government, not private parties.”). Absent special circumstances suggesting concerted action between an attorney and a state representative, see Nicholas v. Goord,

, 656 n.7 (2d Cir. 2005) (citing Adickes v. S.H. Kress & Co. , 398 US. 144, 152 (1970)), the representation of a defendant by private counsel in state criminal proceedings does not constitute the degree of state involvement or interference necessary to establish a claim under Section 1983, regardless of whether that attorney is privately retained, court-appointed, or employed as a public defender. See Bourdon v. Loughren,

(2d Cir. 2004) (citing Polk Cnty. v. Dodson,

(1981)); see also Schnabel v. Abramson,

(2d Cir. 2000) (holding that legal aid organization ordinarily is not a state actor for purposes of Section 1983). Because Defendant is an attorney who 1s not alleged to have been working for any state or other government body when she took the actions of which Plaintiff complains, she cannot be held liable under Section 1983. 2. Diversity of citizenship jurisdiction Plaintiff also does not allege facts sufficient to show that the Court has diversity Jurisdiction of this action. To establish jurisdiction under

, a plaintiff must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep’t of Corr. v. Schacht,

(1998). For diversity purposes, an individual is a citizen of the State where she is domiciled, which is defined as the place where a person “has his true fixed home... and to which, whenever he is absent, he has the intention of returning.” Palazzo ex rel. Delmage v. Corio,

(2d Cir. 2000) (internal quotation marks and citation omitted). An individual “has but one domicile.” Jd. 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

(a); Colavito v. N.Y. Organ Donor Network, Inc.,

, 221 (2d Cir. 2006) (citation and internal quotation marks omitted). Here, Plaintiff does not allege sufficient facts to demonstrate that the Court has diversity jurisdiction of this action. Plaintiff alleges that he resides in New York. He provides a New York

work address for Defendant, but he does not allege the state in which Defendant resides. Furthermore, although Plaintiff appears to seek a total of $50 million in damages, it is unclear from the complaint that any state law claims Plaintiff may be asserting are worth in excess of the $75,000 statutory minimum. The Court grants Plaintiff 30 days’ leave to replead his claims in an amended complaint demonstrating that the Court has subject matter jurisdiction of his claims. To invoke the court’s federal question jurisdiction, Plaintiff must allege facts demonstrating that his claims arise under federal law. Alternatively, to bring state law claims, such as malpractice, under the court’s diversity of citizenship jurisdiction, Plaintiff must allege facts showing that Defendant is a citizen of a state other than New York and that his claims are worth in excess of $75,000.

B. Leave to replead 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,

(2d Cir. 2011); Salahuddin v. Cuomo,

(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,

(2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank,

(2d Cir. 1999)). The Court grants Plaintiff 30 days’ leave to amend his complaint to allege facts demonstrating that the Court has subject matter jurisdiction of his claims. 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. CONCLUSION The Court dismisses the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). The Court grants Plaintiff 30 days’ to replead his claims in an amended complaint. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within 30 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-4373 (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 Court will enter judgment consistent with this order. The Court certifies under

(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. See Coppedge v. United States,

(1962). SO ORDERED. Dated: August 28, 2023 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

Civ. (i)

(In the space above enter the full name(s) of the plaintiff(s).) AMENDED COMPLAINT -against- Jury Trial: O Yes oO No ee (check one)

(dn the space above enter the full name(s) of the defendant(s). Ifyou cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed in the above caption must be identical to those contained in Part I. Addresses should not be included here.)

I. Parties in this complaint: A. List your name, address and telephone number. If you are presently in custody, include your identification number and the name and address of your current place of confinement. Do the same for any additional plaintiffs named. Attach additional sheets of paper as necessary. Plaintiff Name Street Address ee County, City. State& ZipCode Telephone Number eee B. List all defendants. You should state the full name of the defendant, even if that defendant is a government agency, an organization, a corporation, or an individual. Include the address where each defendant may be served. Make sure that the defendant(s) listed below are identical to those contained in the above caption. Attach additional sheets of paper as necessary.

Rev. 12/2009

Street Address _______________________________________________________ County, City _________________________________________________________ State & Zip Code ____________________________________________________ Telephone Number ____________________________________________________ Defendant No. 2 Name ___________________________________________________________ Street Address _______________________________________________________ County, City _________________________________________________________ State & Zip Code ____________________________________________________ Telephone Number ____________________________________________________ Defendant No. 3 Name ___________________________________________________________ Street Address _______________________________________________________ County, City _________________________________________________________ State & Zip Code ____________________________________________________ Telephone Number ____________________________________________________ Defendant No. 4 Name ___________________________________________________________ Street Address _______________________________________________________ County, City _________________________________________________________ State & Zip Code ____________________________________________________ Telephone Number ____________________________________________________ II. Basis for Jurisdiction: Federal courts are courts of limited jurisdiction. 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

, a case involving the United States Constitution or federal laws or treaties is a federal question case. Under

, a case in which a citizen of one state sues a citizen of another state and the amount in damages is more than $75,000 is a diversity of citizenship case. A. What is the basis for federal court jurisdiction? (check all that apply) Q Federal Questions Q Diversity of Citizenship B. If the basis for jurisdiction is Federal Question, what federal Constitutional, statutory or treaty right is at issue? _____________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ C. If the basis for jurisdiction is Diversity of Citizenship, what is the state of citizenship of each party? Plaintiff(s) state(s) of citizenship ____________________________________________________ Defendant(s) state(s) of citizenship ____________________________________________________ ______________________________________________________________________________ Il. Statement of Claim: State as briefly as possible the facts of your case. Describe how each of the defendants named in the caption of this complaint is involved in this action, along with the dates and locations of all relevant events. You may wish to include further details such as the names of other persons involved in the events giving rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary.

A. Where did the events giving rise to your claim(s) occur?

B. What date and approximate time did the events giving rise to your claim(s) occur?

C. Facts) | OR you?

did ee eee eee ee eee ee

as anyone ee else involved? Who else Fee ee eee eee eee eee eee eee eee eee eee eee saw what | happened ? ee

IV. Injuries: If you sustained injuries related to the events alleged above, describe them and state what medical treatment, ifany, yourequired andreceived.

Rev. 12/2009

V. Relief: State what you want the Court to do for you and the amount of monetary compensation, if any, you are seeking, and the basis for such compensation.

I declare under penalty of perjury that the foregoing is true and correct. Signed this _ day of , 20. Signature of Plaintiff Mailing Address

Telephone Number Fax Number (ifyou have one)

Note: All plaintiffs named in the caption of the complaint must date and sign the complaint. Prisoners must also provide their inmate numbers, present place of confinement, and address.

For Prisoners: I declare under penalty of perjury that on this ss dayoof — ——is—“‘éiéiéc2O Cd Lam delivering this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for the Southern District of New York.

Signature of Plaintiff. Inmate Number

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