24-475-cv Trisvan v. Mildred Elley Sch.

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of December, two thousand twenty-four.

Present: GUIDO CALABRESI, MICHAEL H. PARK, ALISON J. NATHAN, Circuit Judges. _____________________________________

JOHN TRISVAN,

Plaintiff-Appellant,

v. 24-475

THE MILDRED ELLEY SCHOOL,

Defendant-Appellee. _____________________________________

FOR PLAINTIFF-APPELLANT: John Trisvan, pro se, Albany, NY.

FOR DEFENDANT-APPELLEE: Jacob Shorter, Gombos Leyton, PC, Fairfax, VA. Appeal from a judgment of the United States District Court for the Northern District of

New York (D’Agostino, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

Plaintiff-Appellant John Trisvan, proceeding pro se, sued the Mildred Elley School in

federal court for fraud and civil rights violations. He alleged that Mildred Elley convinced him to

submit a $33,000 federal loan application, coached him to commit fraud on his financial aid

application, and wrongfully removed him from the school after he had been approved for financial

aid.

The district court adopted a report and recommendation of the magistrate judge and

dismissed Trisvan’s amended complaint without prejudice, and Trisvan did not timely object. The

district court concluded that it lacked subject-matter jurisdiction because Trisvan “failed to set

forth any cognizable federal cause of action” and had “not established diversity” for his fraud

claims. Trisvan v. Mildred Elley Sch., No. 23-CV-1123,

, at *2 (N.D.N.Y. Feb.

20, 2024). Trisvan appealed. We assume the parties’ familiarity with the remaining facts, the

procedural history, and the issues on appeal.

We review de novo a district court’s dismissal under

(e)(2). Hardaway

v. Hartford Pub. Works Dep’t,

(2d Cir. 2018). “We afford a pro se litigant

special solicitude by interpreting a complaint filed pro se to raise the strongest claims that it

suggests.”

(quotation marks omitted).

The district court dismissed Trisvan’s suit for lack of subject-matter jurisdiction because

he failed to identify a federal cause of action. But “the absence of a valid . . . cause of action does

2 not implicate subject-matter jurisdiction.” Am. Psychiatric Ass’n v. Anthem Health Plans, Inc.,

(2d Cir. 2016) (internal quotation marks omitted) (quoting Lexmark Int’l, Inc.

v. Static Control Components, Inc.,

, 128 n.4 (2014)). Subject-matter jurisdiction

“refers to a tribunal’s power to hear a case. It presents an issue quite separate from the question

whether the allegations the plaintiff makes entitle him to relief.” Morrison v. Nat’l Australia Bank

Ltd.,

(2010) (cleaned up). 1

This Court may affirm “on any basis supported by the record, including grounds upon

which the district court did not rely.” Pauwels v. Deloitte LLP,

(2d Cir. 2023)

(cleaned up); see also Morrison,

(“[When] a remand would only require a new

Rule 12(b)(6) label for the same Rule 12(b)(1) conclusion . . . we proceed to address whether

petitioners’ allegations state a claim.”). “[T]he court shall dismiss the case at any time if the court

determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted.”

(e)(2); see Pettus v. Morgenthau,

(2d Cir. 2009).

Trisvan failed to state a claim upon which relief may be granted. He alleged a violation of

“Title 18”—the entirety of the federal criminal code—and

, a provision of the

education code providing criminal penalties for fraudulent federal education loans. Neither of

these gives rise to a viable federal claim because federal “crimes are always prosecuted by the

Federal Government, not . . . by private complaints.” Conn. Action Now, Inc. v. Roberts Plating

Co.,

(2d Cir. 1972).

1 To the extent that Trisvan’s allegations sound in breach of contract, we agree with the district court that he failed to establish diversity jurisdiction over those state-law claims. See Trisvan,

, at *2. The district court dismissed those claims without prejudice, and we express no opinion about their viability in state court. 3 Nor do Trisvan’s general civil-rights allegations “contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (quotation marks omitted). He alleges violations of his civil rights due to “fraud,

deception, [and] denial of honest service[s]” and his status as an individual “suffering a disability.”

App’x at 23-24. But “[a]s we have repeatedly held, complaints relying on the civil rights statutes

are insufficient unless they contain some specific allegations of fact indicating a deprivation of

rights.” Barr v. Abrams,

(2d Cir. 1987).

* * *

We have considered Trisvan’s remaining arguments and conclude they are without merit.

Accordingly, we AFFIRM the judgment of the district court. We DENY as moot Trisvan’s

motion for “summary judgment” and “compensatory, punitive, and declaratory relief.”

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

4