17‐144‐cv Lamb v. Cuomo

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 2 At a stated term of the United States Court of Appeals for the Second 3 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 4 Square, in the City of New York, on the 2nd day of October, two thousand 5 seventeen. 6 7 PRESENT: RAYMOND J. LOHIER, JR., 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges, 10 JED S. RAKOFF, 11 District Judge.* 12 __________________________________________ 13 14 DEBORAH LAMB, JOHN MECCA, PRO SE 15 AS SOVERIGN PEOPLE OF THE UNITED 16 STATES, 17 18 Plaintiffs‐Appellants, 19 20 v. No. 17‐144‐cv 21 22 ANDREW M. CUOMO, THE GOVERNOR FOR 23 N.Y.S., HOWARD A. ZUCKER, THE PUBLIC 24 HEALTH COMMISSIONER FOR N.Y.S., ERIC T.

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 1 SCHNEIDERMAN, THE ATTORNEY GENERAL 2 FOR N.Y.S, JANET DIFIORE, THE CHIEF JUDGE 3 AND THE HEAD OF THE NEW YORK STATE 4 COURT SYSTEM, COUNTY OF SUFFOLK, THE 5 MUNICIPALITY, STEVE BELLONE, THE 6 SUFFOLK COUNTY EXECUTIVE, THOMAS J. 7 SPOTA, THE SUFFOLK COUNTY DISTRICT 8 ATTORNEY, ANN MARIE CSORNY, THE 9 ACTING DIRECTOR SUFFOLK COUNTY 10 MENTAL HYGIENE, DR. JAMES L. 11 TOMARKEN, THE SUFFOLK COUNTY 12 COMMISSIONER OF PUBLIC HEALTH, JOHN 13 F. O’NEILL, THE SUFFOLK COUNTY 14 COMMISSIONER OF SUFFOLK COUNTY 15 SOCIAL SERVICES, TIMOTHY D. SINI, THE 16 SUFFOLK COUNTY POLICE COMMISSIONER, 17 VINCENT F. DEMARCO, THE SUFFOLK 18 COUNTY SHERIFF, JUDITH A. PASCALE, THE 19 SUFFOLK COUNTY CLERK, ANN MARIE 20 SULLIVAN, THE MENTAL HEALTH 21 COMMISSIONER FOR N.Y.S., 22 23 Defendants‐Appellees, 24 25 JOHN DOE(S), #1–20, 26 27 Defendants. 28 __________________________________________ 29 30 FOR APPELLANTS: DEBORAH LAMB, pro se, John Mecca, pro se, 31 Kings Park, NY. 32 33 FOR STATE APPELLEES: SCOTT A. EISMAN (Barbara D. Underwood, 34 Solicitor General, Steven C. Wu, Deputy 35 Solicitor General, David Lawrence III, 36 Assistant Solicitor General, on the brief), for 37 Eric T. Schneiderman, Attorney General for 38 the State of New York, New York, NY.

2 1 2 FOR COUNTY APPELLEES: Christopher A. Jeffreys, Assistant County 3 Attorney, for Dennis M. Brown, Suffolk 4 County Attorney, Hauppauge, NY. 5 6 Appeal from a judgment of the United States District Court for the Eastern

7 District of New York (Joanna Seybert, Judge). UPON DUE CONSIDERATION,

8 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of

9 the District Court is AFFIRMED.

10 Appellants Deborah Lamb and John Mecca, proceeding pro se, appeal from

11 a judgment of the District Court (Seybert, J.) sua sponte dismissing their suit

12 brought under

. We assume the parties’ familiarity with the facts

13 and record of the prior proceedings, to which we refer only as necessary to

14 explain our decision to affirm.

15 We have not yet addressed whether we review de novo or for abuse of

16 discretion a district court’s sua sponte dismissal of a complaint for frivolousness

17 where the litigant has paid the filing fee. Fitzgerald v. First E. Seventh St.

18 Tenants Corp.,

, 364 & n.2 (2d Cir. 2000). We need not reach that

19 issue here because the District Court’s decision “easily passes muster under the

20 more rigorous de novo review.”

at 364 n.2. A claim is frivolous “where it

3 1 lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

319, 325 (1989). District courts should generally not dismiss a pro se complaint

3 without permitting at least one opportunity to amend, but granting leave to

4 amend is not necessary when it would be futile. See Cuoco v. Moritsugu, 222

(2d Cir. 2000).

6 Upon review, we find no error in the District Court’s dismissal of

7 appellants’ complaint because, even when read with the “special solicitude” due

8 pro se pleadings, Triestman v. Fed. Bureau of Prisons,

(2d Cir.

9 2006), their allegations “rise to the level of the irrational or the wholly incredible,

10 whether or not there are judicially noticeable facts available to contradict them,”

11 Denton v. Hernandez,

(1992). And given the wholly incredible

12 nature of the alleged facts upon which appellants’ claims are based, the District

13 Court reasonably concluded that granting leave to amend would be futile. See

14 Cuoco, 222 F.3d at 112.

15 We have considered appellants’ remaining arguments and conclude that

16 they are without merit. Accordingly, we AFFIRM the District Court’s judgment.

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk of Court 19

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