Opinion
5:22-cv-1067 (TJM/TWD)
11-07-2022
JOHN A PORTER III, Plaintiff, v. SHAIQUIDA B HAYES, Defendant.
JOHN A PORTER III PLAINTIFF, PRO SE
JOHN A PORTER III PLAINTIFF, PRO SE
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
The Clerk sent this pro se Complaint filed by John A. Porter III (“Plaintiff”), together with an application to proceed in forma pauperis (“IFP Application”), to the undersigned for review. (See Dkt. Nos. 1, 2.) Having reviewed Plaintiff's IFP Application, the undersigned GRANTS the application for purposes of this review. (See Dkt. No. 2.) The undersigned now considers the sufficiency of the allegations set forth in the Complaint under 28 U.S.C. § 1915(e)(2). For the reasons discussed below, the undersigned recommends that the Court DISMISS Plaintiff's Complaint in its entirety for lack of subject matter jurisdiction and for failure to state a claim. (Dkt. No. 1; see also Fed.R.Civ.P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(B)(ii).) Due to these substantive defects in Plaintiff's Complaint, the undersigned further recommends that dismissal be without leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
The following recitation of facts is drawn from the Complaint, which the Court accepts as true for purposes of initial review. See, e.g., LaTouche v. Rockland County, No. 22-CV-1437 (LTS), 2022 WL 953111, at *1 (S.D.N.Y. Mar. 29, 2022); Walker v. City of New York, No. 20-CV-5240 (PKC) (LB), 2021 WL 1838277, at *1 n.1 (E.D.N.Y. May 7, 2021).
Plaintiff initiated this action against Shaiquida B. Hayes (“Defendant”) on October 17, 2022. (See Dkt. No. 1.) In relevant part, Plaintiff claims Defendant defamed him and stole his identity through the creation of “a fictitious Tik Tok Page using [Plaintiff's] images, likeness and intellectual property” wherein she “listed [Plaintiff's] home address to 92 followers without consent,” and “portrayed [him] as a Homosexual man, when in Fact, [he] is not.” Id. at 2. Plaintiff claims these actions defamed his character, placed his family in danger, and caused his business to experience “a drastic decrease in sales.” See id.
Based on these allegations, Plaintiff appears to advance two causes of action. See id. at 3-4. Through the first, he claims Defendant defamed him in violation of 28 U.S.C. § 4101(1). See id. at 4. Through the second, he claims Defendant stole his identity in violation of 18 U.S.C. § 1028a. See id. Plaintiff accordingly seeks $30,000,000 in damages. See id.
II. STANDARD OF REVIEW
This Court must conduct an initial review of complaints filed in forma pauperis. 28 U.S.C. § 1915(e)(2)(B). When conducting this review, “the court shall dismiss the case at any time if the court determines . . . the action . . . is frivolous or malicious . . . [or] fails to state a claim on which relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021). The Court must accordingly construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
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).
“An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.
III. SUFFICIENCY OF THE COMPLAINT
This Court lacks subject-matter jurisdiction over Plaintiff's Complaint because there is no diversity of citizenship and the Complaint fails to state a claim that arises under the Constitution, laws, or treaties of the United States. See 28 U.S.C. §§ 1331, 1332. The undersigned accordingly recommends that the Court dismiss Plaintiff's Complaint in its entirety for lack of subject matter jurisdiction and for failure to state a claim. See 28 U.S.C. §§ 1331, 1332; 28 U.S.C. § 1915(e)(2)(B)(ii); see also 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.”).
First, jurisdiction is lacking under 28 U.S.C. § 1332 because Plaintiff and Defendant are both citizens of New York. Compare 28 U.S.C. § 1332(a) (requiring diversity of citizenship), with Dkt. No. 1 at 2 (alleging Plaintiff and Defendant are both citizens of New York). Even if this Court were to liberally construe Plaintiff's Complaint as asserting claims under New York State law, jurisdiction would still be lacking under 28 U.S.C. § 1332. See 28 U.S.C. § 1332(a).
Second, jurisdiction is lacking under 28 U.S.C. § 1331 because Plaintiff has failed to state a claim arising under the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 1331. Plaintiff asserts one cause of action for defamation under 28 U.S.C. § 4101(1), and another cause of action for identity theft under 18 U.S.C. § 1028A. (See Dkt. No. 1 at 3-4.) However, “28 U.S.C. 4101 does not create a cause of action” for defamation-it defines defamation “in the context of a statute that allows for actions recognizing foreign defamation judgments.” Thomas v. Brasher-Cunningham, No. 3:19-CV-1981 (VAB), 2020 WL 4284564, at *10 (D. Conn. July 27, 2020); see also Renxiong Huang v. Minghui.org, No. 17-CIV-5582 (ER), 2018 WL 3579103, at *5 (S.D.N.Y. July 25, 2018) (explaining “Section 4101 is a definitional statute in service of 28 U.S.C. § 4102 et seq.,” which “concerns the recognition of foreign defamation judgments”). “Although the tort of defamation is a well-recognized cause of action under state common law, federal law does not create a general cause of action or provide a basis for federal question jurisdiction for defamation.” Steffens v. Kaminsky, No. 3:20-CV-737 (JAM), 2020 WL 2850605, at *2 (D. Conn. June 2, 2020) (collecting cases); see also Fleming v. Laakso, No. 18-CV-1527 (RA) (BCM), 2019 WL 959521, at *5 (S.D.N.Y. Feb. 5, 2019), report and recommendation adopted, 2019 WL 952349 (S.D.N.Y. Feb. 26, 2019); Harris v. Doe, No. 17-CV-7256 (WFK), 2018 WL 1997976, at *2 (E.D.N.Y. Apr. 27, 2018).
Similarly, “18 U.S.C. § 1028 is purely criminal in nature and creates no private right of action.” Hernandez v. Doe, No. 16-CV-2375 (KAM) (LB), 2016 WL 4995231, at *2 (E.D.N.Y. Sept. 18, 2016); see also Clark v. Student Loan Fin. Corp., No. 18-CV-9354 (JPO), 2019 WL 4412571, at *2 (S.D.N.Y. Sept. 16, 2019); Cabrera v. U.S. Dep't Educ., No. 6:18-CV-06476 (MAT), 2018 WL 11449477, at *2 (W.D.N.Y. July 5, 2018); Garay v. U.S. Bancorp, 303 F.Supp.2d 299, 302-303 (E.D.N.Y. 2004). “There is no private federal cause of action for identity theft.” Cabrera, 2018 WL 11449477, at *2; see also Akram v. Akram, No. CV-22-02699 (KM) (JRA), 2022 WL 2473439, at *2 (D.N.J. July 6, 2022); Abdul-Sabur v. Wells Fargo Bank, N.A., No. 7:19-CV-674, 2020 WL 1670193, at *2 (W.D. Va. Feb. 10, 2020), report and recommendation adopted, 2020 WL 1665313 (W.D. Va. Apr. 3, 2020); Blackstock v. Walgreens, No. 4:17-CV-02097 (RBH) (KDW), 2017 WL 4174767, at *2 (D.S.C. Sept. 1, 2017), report and recommendation adopted, 2017 WL 4156445 (D.S.C. Sept. 19, 2017).
Plaintiff has accordingly failed to state a claim for defamation or identity theft that arises under the Constitution, laws, or treaties of the United States. See, e.g., McArthur v. C-Town Super Mkt., No. 3:21-CV-972 (SRU), 2022 WL 2981573, at *5 (D. Conn. July 28, 2022) (dismissing the claimant's Section 4101 defamation claim because it “is not cognizable, [and] cannot present a federal question”); Clark, 2019 WL 4412571, at *2 (dismissing the claimant's Section 1028 identity theft claim for lack of subject matter jurisdiction because “Section 1028 . . . does not supply a private right of action.”); Harris, 2018 WL 1997976, at *2 (“Plaintiffs allege a claim for defamation but there is no federal cause of action for defamation because it is an issue of state law, not of federal constitutional law. Thus, even liberally construed, plaintiffs' complaint does not present a federal question.”); Hernandez, 2016 WL 4995231, at *2-3 (dismissing the claimant's Section 1028 identity theft claim for lack of subject matter jurisdiction and failure to state a claim). The undersigned accordingly recommends that the Court dismiss Plaintiff's Complaint in its entirety for lack of subject matter jurisdiction and for failure to state a claim. See Fed.R.Civ.P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(B)(ii).
IV. AMENDMENT WOULD BE FUTILE
Typically, a court should not dismiss a pro se litigant's complaint without granting leave to amend “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-705 (2d Cir. 1991). However, a complaint that suffers substantive defects cannot be cured by artful pleading. See Cuoco, 222 F.3d at 112. Such a complaint should accordingly be dismissed without leave to amend because repleading would be futile. See id.
The undersigned concludes amendment would be futile because Plaintiff's claims are not cognizable as private causes of action under federal law. See Steffens, 2020 WL 2850605, at *2 (explaining “federal law does not create a general cause of action or provide a basis for federal question jurisdiction for defamation.”); Cabrera, 2018 WL 11449477, at *2 (“There is no private federal cause of action for identity theft.”). Having construed Plaintiff's Complaint liberally, see Sealed Plaintiff, 537 F.3d at 191, the undersigned recommends that the Court dismiss the Complaint without leave to amend. See, e.g., McArthur, 2022 WL 2981573, at *5 (dismissing the claimant's Section 4101 defamation claim without leave to amend because “repleading would be futile.”); Clark, 2019 WL 4412571, at *2, 5 (dismissing the claimant's Section 1028 identity theft claim without leave to amend because “amendment would be futile”); Hernandez, 2016 WL 4995231, at *2-3 (dismissing the claimant's Section 1028 identity theft claim without leave to amend because “amendment would be futile.”); Clarke v. Leading Hotels of the World, Ltd., No. 15-CV-0008 (JMF), 2015 WL 6686568, at *4-5 (S.D.N.Y. Oct. 29, 2015) (dismissing the claimant's Section 1028 claim without leave to amend where “amendment would be futile because the problem with the claim is substantive and better pleading will not cure it.”).
V. CONCLUSION
For the foregoing reasons, the undersigned recommends that the Court dismiss Plaintiff's Complaint in its entirety for lack of subject matter jurisdiction and for failure to state a claim. (Dkt. No. 1.) The undersigned further recommends that dismissal be without leave to amend.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED solely for purposes of initial review; 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); and it is further
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITHOUT LEAVE TO AMEND pursuant to Fed.R.Civ.P. 12(h)(3), 28 U.S.C. §§ 1915(e)(2)(B)(ii), and Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 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).