Opinion
1:22-cv-01246 (TJM/TWD)
12-16-2022
NICHOLAS DAYTER, Plaintiff, v. DANIELLE PLOOF, Defendants.
NICHOLAS DAYTER Plaintiff, pro se
APPEARANCES:
NICHOLAS DAYTER Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS UNITED STATES MAGISTRATE JUDGE
Nicholas Dayter (“Plaintiff”), proceeding pro se, commenced this action against Danielle Ploof (“Defendant”) on November 22, 2022, and in lieu of paying the Northern District of New York's filing fee, seeks leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.)
I. IFP APPLICATION
Plaintiff declares he is unable to pay the filing fee for this action. (Dkt. No. 2.) The undersigned has reviewed Plaintiff's IFP application and determines he financially qualifies to procced IFP. Therefore, Plaintiff's IFP application is granted.
Plaintiff is advised that he will still be required to pay any costs and fees that he may incur in this matter, including, but not limited to, any copying fees or witness fees.
II. SCREENING OF THE COMPLAINT
A. Legal Standard
Under Section 1915(e), the Court must dismiss a complaint filed IFP if it 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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).The Court must also dismiss a complaint, or portion thereof, when 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, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest claims that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2).
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. 1994). “[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.
Excerpts from the complaint are reproduced exactly as they appear in the original. Errors in spelling, punctuation, and grammar have not been corrected or noted.
Plaintiff claims that on November 18, 2022, Defendant violated the First Amendment and committed “Liberal Slander and Defimation of Character” against him which caused him physical injuries and “life threats of being killed.” (Dkt. No. 1 at ¶ 4.) She tried to “destroy” his life. Id. “She made threats and harassment” and he “had to get an order of protection.” Id. Plaintiff claims Defendant “posted something on social media which slander me and defimation of my charcter which caused me phyiscal harm and danger and phyiscal injruy.” Id. The complaint seeks damages in the amount of $150,000 or to “own her home.” Id. at ¶ 6.
C. Analysis
Plaintiff purportedly brings this action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990). Section 1983 does not create any independent substantive right, but rather “provides a civil claim for damages” to “redress . . . the deprivation of [federal] rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). “To state a valid claim under § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997).
The requirement that the defendant acted under “color of state law” is jurisdictional. Bennett v. Bailey, 2020 WL 5775940, at *2 (N.D.N.Y. Aug. 17, 2020), report-recommendation adopted, 2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). Private parties are not generally considered to be state actors. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013). Private conduct is simply beyond the reach of Section 1983 “no matter how discriminatory or wrongful that conduct may be.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
Here, although Plaintiff references the First Amendment, he has alleged no facts showing how Defendant acted as a state actor when she allegedly injured him. Because Defendant is a private citizen and Plaintiff's allegations do not involve conduct the Court construes to be joint activity with the State, Plaintiff has not stated a plausible claim under Section 1988 for violation of the First Amendment. Therefore, the Court recommends dismissing Plaintiff's claims under Section 1983 against Defendant for failure to state a claim upon which relief may be granted.
Furthermore, Plaintiff's allegations of libel, slander, and defamation do not confer federal question jurisdiction. See Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004) (defamation is an issue of state law); Sabin v. Arthurs, 2012 WL 6098266, at *2 (N.D.N.Y. Oct. 31, 2012) (“[B]ecause defamation (libel and slander) . . . are state law torts, there is no federal question jurisdiction under 28 U.S.C. § 1331.”); report-recommendation adopted, 2012 WL 6098023 (N.D.N.Y. Dec. 7, 2012); Gause v. Chase Home Fin. LLC, 2009 WL 4984346, at *2 (E.D.N.Y. Dec. 9, 2009) (neither libel nor slander confers federal subject matter jurisdiction). Plaintiff's complaint, at best, alleges possible state law tort claims. Therefore, the Court finds there is no federal question jurisdiction.
To properly allege diversity jurisdiction, Plaintiff must allege (1) diversity of citizenship between the parties, and (2) an amount in controversy that exceeds $75,000. See 28 U.S.C. § 1332(a). Here, Plaintiff states he is a resident of Albany County and provides an address in Schenectady, New York. (Dkt. No. 1 at ¶ 2, Dkt. No. 1-1.) He indicates Defendant is a resident of Washington County and provides an address in Barre, Vermont. (Dkt. No. 1 at ¶ 3, Dkt. No. 1-1.) Even assuming diversity of citizenship exists between Plaintiff and Defendant, Plaintiff fails to satisfy the amount in controversy requirement. “[A] plaintiff invoking federal jurisdiction must demonstrate a reasonable probability that the amount-in-controversy requirement is satisfied[.]” Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 223 (2d Cir. 2017). Although courts recognize a “presumption that the face of the complaint is a good faith representation of the actual amount in controversy,” that presumption is rebutted where there is “legal certainty that [the plaintiff] could not recover the amount alleged or that the damages alleged were feigned to satisfy jurisdictional minimums.” Colavito v. New York Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006).
On December 12, 2022, Text Orders mailed to Plaintiff's address on file were returned as “Undeliverable -Vacant-Unable to Forward.” (Dkt. Nos. 4, 5, 6.)
Under New York law, damages for defamation, libel, and slander can include both “out-of-pocket loss” and “impairment of reputation and standing in the community, personal humiliation and mental anguish and suffering.” Gousse v. Giardullo, 2021 WL 429970, at *2 (E.D.N.Y. Feb. 8, 2021). Here, Plaintiff requests $150,000 in damages due to an undisclosed physical injury, what he “lost”, and “danger of being killed.” (Dkt. No. 1 at ¶¶ 5-6.) Alternatively, he asks to “own her home.” Id. at ¶ 6. Plaintiff, however, has not alleged any facts showing an out-of-pocket loss, damages to his reputation, or any manifestations of his alleged mental anguish. Thus, even accepting all facts alleged as true, Plaintiff's damages are speculative and fail to meet the amount in controversy for diversity jurisdiction. See Trisvan v. Burger King Corp., 2020 WL 1975236, at *2 (E.D.N.Y. Apr. 24, 2020) (“The amount in controversy must be non-speculative in order to satisfy the statute and conclusory allegations that the amount-in-controversy requirement is satisfied are insufficient.”). Therefore, the Court finds there is no diversity jurisdiction.
Moreover, even if Plaintiff could invoke the Court's diversity jurisdiction, his claims for defamation, libel, and slander, as currently alleged in his complaint, fail to state a claim for relief. A claim for “defamation” is an umbrella term that incorporates the “twin torts of libel and slander.” Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001). “Defamation is the injury to one's reputation either by written expression, which is libel, or by oral expression, which is slander.” Biro v. Conde Nast, 883 F.Supp.2d 441, 456 (S.D.N.Y. 2012). In assessing whether a defamation claim has been pled with sufficient particularity, courts look to “whether said complaint references the alleged defamatory statement, identifies who made the statement, when it was made, the context in which it was made, whether it was made orally or in writing and whether it was made to a third party.” Nickerson v. Communication Workers of America Local 1171, 2005 WL 1331122, at *7 (N.D.N.Y. May 31, 2005); see also Muzio v. Incorporated Village of Bayville, 2006 WL 39063, at *8 (E.D.N.Y. Jan. 3, 2006).
Notably, Plaintiff's complaint does not identify the allegedly false and defamatory language at issue. “Vagueness as to the complained-of conduct is particularly inappropriate when pleading a defamation claim” because “the complaint must afford defendant sufficient notice of the communications complained of to enable him to defend himself.” Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 251 (2d Cir. 2017). Because Plaintiff has not alleged a specific statement made by Defendant or why the statement was allegedly false, he has failed to properly plead a defamation, slander, or libel claim. Absent these basic details, the Court is left with “an unadorned, the-defendant-harmed-me accusation.” See Iqbal, 556 U.S. at 678.
Accordingly, the undersigned recommends dismissing Plaintiff's complaint without prejudice. Hollander v. Garrett, 710 Fed.Appx. 35, 36 (2d Cir. 2018) (“[D]ismissal for subject matter jurisdiction must be without prejudice.”). Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to replead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). “[L]ack of subject matter jurisdiction is a substantive defect that cannot be cured by better pleading.” Moran v. Proskauer Rose LLP, 2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017). In deference to Plaintiff's pro se status and out of an abundance of caution, the Court recommends granting Plaintiff leave to amend.
In light of the foregoing recommendation, Plaintiff is not prevented from filing a complaint in an appropriate state court, should he wish to do so. However, the undersigned makes no finding as to whether Plaintiff can successfully or properly bring the complaint in state court.
The Court advises Plaintiff that should he be permitted to amend his complaint, any amended pleading he submits must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint should specifically identify the legal theory or theories that form the basis for his claim, and specify (i) the alleged act of misconduct; (ii) the date, including the year, on which such misconduct occurred; (iii) the names of each and every individual who participated in such misconduct; (iv) where appropriate, the location where the alleged misconduct occurred; and, (v) the nexus between such misconduct and Plaintiff's civil and/or constitutional rights. Plaintiff is cautioned that no portion of his prior complaint shall be incorporated into the amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth all of the claims he intends to assert against Defendant and must demonstrate that a case or controversy exists between Plaintiff and Defendant which Plaintiff has a legal right to pursue and over which this Court has jurisdiction.
D. Local Rules
Under this Court's rules, an unrepresented litigant is under a duty to inform the Court of any address changes in writing. L.R. 10.1(c)(2). For the orderly disposition of cases, it is essential that litigants honor their continuing obligation to keep the Court informed of address changes. Upon review of the docket, Text Orders mailed to Plaintiff's address on file were returned as “Undeliverable - Vacant - Unable to Forward.” (Dkt. Nos. 4, 5, 6.) Plaintiff must promptly notify the Clerk's Office, in writing, of any change in his address; his failure to do so may result in the dismissal of this action.
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is GRANTED; and it is further RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that Plaintiff must file a CHANGE OF ADDRESS within fourteen days of the date of this Order and Report-Recommendation, and he must continue to submit any address changes to the Court and all parties, in writing, of any change in his address; failure to notify the Court of a change of address in accordance with L.R. 10.1(c)(2) may result in the dismissal of the action; 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 Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has 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. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
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).