Opinion
22-CV-4971 (LTS)
07-26-2022
ERIC T. BAKER, obo minor KO, Plaintiff, v. KIMANI LEWIS-ASHLEY, UNITED STATES, Defendants.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is appearing pro se, brings this action under the Court's federal question jurisdiction, purportedly on behalf of his minor nephew, KO. By order dated July 1, 2022, the Court granted Plaintiff leave to proceed in forma pauperis (IFP), that is, without prepayment of fees. The complaint is dismissed for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from 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 when the Court lacks subject matter jurisdiction of the claims raised. 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 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
BACKGROUND
Plaintiff, a Manhattan resident, filed this complaint on behalf of his minor nephew, KO, against Kimani Lewis-Ashley, a hotel employee in Manhattan, and the United States. According to the complaint:
There is a collective belief that boys are not sexually exploited, which was communicated by means of audio correspondence and motion projectiles. Defendant Kimani Ashley launched obscenely at [KO], with lewd imaging of penis and commenced to replicating sex with a minor; 8 years of age. This was encouraged by several members of the government and onlookers alike.(ECF 3 ¶ III.)
Plaintiff seeks “full justice” under the “Protect Our Children Act of 2008.” (Id. ¶ IV.)
DISCUSSION
The provision governing appearances in federal court, 28 U.S.C. § 1654, allows two types of representation: “that by an attorney admitted to the practice of law by a governmental regulatory body, and that by a person representing himself.” Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (internal quotation marks and citation omitted). This is so even when a non-attorney parent brings an action on behalf of her minor child in federal court without counsel. See Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005). And “because pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause. A person must be litigating an interest personal to him.” Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); Cheung v. Youth Orch. Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) (“[I]t is not in the interests of minors . . . that they be represented by non-attorneys.”).
Plaintiff has alleged no facts suggesting that he is an attorney. He cannot, therefore, assert any claims on behalf of his minor nephew.
Under Rule 5.2(a)(3) of the Federal Rules of Civil Procedure, any reference in a court submission to a minor child must be limited to the child's initials. Because Plaintiff lists KO's full name in his submissions, the Court has asked the Clerk of Court to limit electronic access to them.
LEAVE TO AMEND DENIED
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his complaint.
Since April 15, 2022, Plaintiff has filed six pro se cases in this court. See Baker v. Obama, ECF 1:22-CV-3125 (S.D.N.Y July 11, 2022) (dismissing complaint as frivolous); Baker v. GVS Prop., ECF 1:22-CV-3745 (S.D.N.Y. filed May 6, 2022) (pending); Heights in Paris v. Almanzar, ECF 1:22-CV-3224 (S.D.N.Y. June 16, 2022) (dismissing complaint filed on behalf of an entity); Baker v. Yale, ECF 1:22-CV-3222 (S.D.N.Y. Apr. 21, 2022) (transferring matter to the United States District Court for the District of Connecticut); Baker v. Jamaica, ECF 1:22-CV-4452 (S.D.N.Y. June 7, 2022) (transferring complaint to the Eastern District of New York). Plaintiff is warned that further meritless litigation in this Court may result in an order barring him from filing new actions IFP without prior leave of court. See 28 U.S.C. § 1651; Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir. 2009) (discussing circumstances where frequent pro se litigant may be charged with knowledge of particular legal requirements).
CONCLUSION
Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Judgment shall issue.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.