Opinion
No. 17-144-cv
10-02-2017
DEBORAH LAMB, JOHN MECCA, PRO SE AS SOVERIGN PEOPLE OF THE UNITED STATES, Plaintiffs-Appellants, v. ANDREW M. CUOMO, THE GOVERNOR FOR N.Y.S., HOWARD A. ZUCKER, THE PUBLIC HEALTH COMMISSIONER FOR N.Y.S., ERIC T. SCHNEIDERMAN, THE ATTORNEY GENERAL FOR N.Y.S, JANET DIFIORE, THE CHIEF JUDGE AND THE HEAD OF THE NEW YORK STATE COURT SYSTEM, COUNTY OF SUFFOLK, THE MUNICIPALITY, STEVE BELLONE, THE SUFFOLK COUNTY EXECUTIVE, THOMAS J. SPOTA, THE SUFFOLK COUNTY DISTRICT ATTORNEY, ANN MARIE CSORNY, THE ACTING DIRECTOR SUFFOLK COUNTY MENTAL HYGIENE, DR. JAMES L. TOMARKEN, THE SUFFOLK COUNTY COMMISSIONER OF PUBLIC HEALTH, JOHN F. O'NEILL, THE SUFFOLK COUNTY COMMISSIONER OF SUFFOLK COUNTY SOCIAL SERVICES, TIMOTHY D. SINI, THE SUFFOLK COUNTY POLICE COMMISSIONER, VINCENT F. DEMARCO, THE SUFFOLK COUNTY SHERIFF, JUDITH A. PASCALE, THE SUFFOLK COUNTY CLERK, ANN MARIE SULLIVAN, THE MENTAL HEALTH COMMISSIONER FOR N.Y.S., Defendants-Appellees, JOHN DOE(S), #1-20, Defendants.
FOR APPELLANTS: DEBORAH LAMB, pro se, John Mecca, pro se, Kings Park, NY. FOR STATE APPELLEES: SCOTT A. EISMAN (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, David Lawrence III, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General for the State of New York, New York, NY. FOR COUNTY APPELLEES: Christopher A. Jeffreys, Assistant County Attorney, for Dennis M. Brown, Suffolk County Attorney, Hauppauge, NY.
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.
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 2nd day of October, two thousand seventeen. PRESENT: RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges, JED S. RAKOFF, District Judge. FOR APPELLANTS: DEBORAH LAMB, pro se, John Mecca, pro se, Kings Park, NY. FOR STATE APPELLEES: SCOTT A. EISMAN (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, David Lawrence III, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General for the State of New York, New York, NY. FOR COUNTY APPELLEES: Christopher A. Jeffreys, Assistant County Attorney, for Dennis M. Brown, Suffolk County Attorney, Hauppauge, NY.
Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. --------
Appeal from a judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Appellants Deborah Lamb and John Mecca, proceeding pro se, appeal from a judgment of the District Court (Seybert, J.) sua sponte dismissing their suit brought under 42 U.S.C. § 1983. We assume the parties' familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.
We have not yet addressed whether we review de novo or for abuse of discretion a district court's sua sponte dismissal of a complaint for frivolousness where the litigant has paid the filing fee. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 & n.2 (2d Cir. 2000). We need not reach that issue here because the District Court's decision "easily passes muster under the more rigorous de novo review." Id. at 364 n.2. A claim is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). District courts should generally not dismiss a pro se complaint without permitting at least one opportunity to amend, but granting leave to amend is not necessary when it would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Upon review, we find no error in the District Court's dismissal of appellants' complaint because, even when read with the "special solicitude" due pro se pleadings, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006), their allegations "rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them," Denton v. Hernandez, 504 U.S. 25, 33 (1992). And given the wholly incredible nature of the alleged facts upon which appellants' claims are based, the District Court reasonably concluded that granting leave to amend would be futile. See Cuoco, 222 F.3d at 112.
We have considered appellants' remaining arguments and conclude that they are without merit. Accordingly, we AFFIRM the District Court's judgment.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of Court