Opinion
5:23-cv-00913 (BKS/TWD)
08-30-2023
ALICIA COLON, Plaintiff, v. ANTHONY DAVIS, et al., Defendants.
ALICIA COLON Plaintiff, pro se.
ALICIA COLON Plaintiff, pro se.
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge.
The Clerk has sent the Court a civil rights complaint filed by Alicia Colon (“Plaintiff”) for initial review pursuant to 28 U.S.C. § 1915 together with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) For the reasons discussed below, the undersigned grants Plaintiff's IFP application and recommends dismissal of Plaintiff's complaint in its entirety.
I. IFP APPLICATION
“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid.” 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's IFP application (Dkt. No. 2), the undersigned finds she meets this standard. Therefore, Plaintiff's IFP application is granted.
Plaintiff is advised that although she has been granted IFP status, she is still required to pay any fees and costs she may incur in this action.
II. INITIAL REVIEW OF THE COMPLAINT
A. Legal Standard
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 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).
In addition, the Court shall dismiss any action where the complaint fails to allege facts plausibly suggesting subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1988) (holding subject matter jurisdiction is a “threshold question that must be resolved . . . before proceeding to the merits.”); Humphrey v. Syracuse Police Dep't, 758 Fed.Appx. 205, 205-06 (2d Cir. 2019) (“Before deciding any case on the merits, a district court must determine that it has subject matter jurisdiction over the matter.”) (citing United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)); Koziel v. City of Yonkers, 352 Fed.Appx. 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal of complaint on initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF, No. 15-CV-5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug. 31, 2018); Hughes v. Patrolmen's Benevolent Ass'n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967 (1988)) (“A court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject matter jurisdiction.”).
“In reviewing a complaint . . . 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) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”).
B. Summary of the Complaint
Plaintiff brings this action against the Syracuse City School District (“SCSD”); Anthony Davis, SCSD Superintendent; Monique Wright-Williams, Chief of Staff and Head of Family Engagement Department; and Nina Vergara, Family Engagement Facilitator of SCSD Westside Quadrant (collectively “Defendants”). (Dkt. No. 1.)
Plaintiff initially contends “Various staff & teachers throughout the thirty-four different school sites in the [SCSD] are victims of bullying & coercion & have been since at least 2009 at which time SCSD staff member Joseph Mazzella committed suicide.” (Dkt. No. 1 at 9.) She claims “The bullying is continuous as recent as 2022-23 when a SCSD employee confided in the Plaintiff that her teaching job is posing a severe negative impact to her mental health.” Id. Plaintiff claims “This unknown employee was the only current SCSD employee to sign an online petition created by the Plaintiff & the Unknown Employee showed up on the SCSD social media page short after.” Id. “The Plaintiff took this as a threat to her friends' safety & job security & has since removed her online Petition from the Change.org website.” Id.
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
The complaint is 83 pages and is comprised of two standard civil rights complaints, 14 typewritten pages, and 50 pages of exhibits. Page references to are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
The remainder of the complaint appears to stem from alleged incidents spanning the 2022-23 school year. From what the Court can glean, Plaintiff's daughter attends Delaware Primary School and Plaintiff has been a Parent Advisory Council officer for several years. Id. at 9, 12.
Plaintiff claims the SCSD “fails to fulfill their duty of fostering a safe school culture & environment for staff, families, and students” by encouraging staff to lie and to intimidate parents, families, and board members into “silence.” Id. at 16. She claims SCSD Family Engagement has failed in their duty of assisting the Parent Teacher Organizations and the agency fails to “foster effective & meaningful family engagement opportunities at every school site which are accessible to every family regardless of the language they speak.” Id. She complains Defendants no longer send out emails with the dates and time of the Parent Advisory Council Meetings in advance in violation of her “rights to know about Family Involvement Activities occurring at her child's school.” Id. at 16. Despite notifying Defendants, her contact information has not been updated, which violates her right to “timely communication from the local education agency which her child attends.” Id. She claims the individual Defendants are “bullies” and interfered with the administration of the Parent Advisory Council and “failed to uphold their duty of fostering effective Family Involvement & Participation.” Id. at 15-16. She asserts Defendants have failed to provide the Parent Council Officers with training, additional meetings, support, and have “failed in their duty of assisting parents & families in becoming effective participants in school planning & governance within the [SCSD] agency and at school sites.” Id. at 16. She also complains SCSD does not have an adequate website, has refused to implement “parliamentary procedure” during Parent Advisory Council Meetings, and lacks an accessible application process for jobs and volunteering. Id. at 18-19.
Plaintiff has also “incurred costs associated with Family Involvement as the agency does not supply her with internet in her family room or access to a printer, printer paper, printer ink, pens, staples, or other meeting supplies which are necessary to foster effective family involvement during the school site requirement monthly meetings with families.” Id. at 12.
Moreover, on April 12, 2023, Plaintiff appeared before the “SCSD Board of Education at the general business meeting & delivered written copies of a motion to amend the SCSD Community & Family Involvement Policy.” Id. Her “motion included two policy changes: the first was a revision to the agencies current Parenting Description which appears on their Title 1 Family & Community Involvement Plan which they submit to NYS each year, & the second was an addition to the existing policy which stated Parents would have the right to prohibit the agency & any community partners from using virtual reality equipment with the their child or placing this type of equipment on their child's body.” Id. However, “the amendment has not appeared on the agenda and no board member has asked her any questions about it.” Id.
As relief, among other things, Plaintiff seeks to “preserve the safety & job security” of her friend. Id. at 19. She wants Delaware Primary School to be assigned a different Family Engagement Facilitator to develop a “functional Volunteer Application Process” for parents that is easy to understand. Id. at 20. She wants to ensure all Parent Council officers are timely notified of the dates and times of the meetings as they were prior to November 2022. Id. She asks that all families have access to computers, printers, and the internet. Id. She wants to prevent the SCSD from using virtual reality equipment in their classroom until it can be scientifically proven that it helps students learn. Id. She wants Defendants to provide the Parent Advisory Council with information regarding the “Pump Bus” and “where the funds for Superintendent Davis community BBQs is coming from.” Id. at 20-21.
For a complete statement of Plaintiff's claims, reference is made to the complaint. (Dkt. No. 1.)
C. Analysis
The Court lacks jurisdiction over the complaint as currently pled. “[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be dismissed.” Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) (citations omitted); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed.R.Civ.P. 12(h)(3). The plaintiff bears the burden of establishing subject matter jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
In order for the Court to have jurisdiction over the matter, there must either be federal question jurisdiction or diversity jurisdiction. 28 U.S.C. §§ 1331 & 1332. Federal question jurisdiction arises in an action “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The complaint does not appear to assert claims that would give this Court federal question jurisdiction. (See generally Dkt. No. 1.) Although the civil cover sheet references the Every Student Succeeds Act (“ESSA”), the ESSA “does not provide a private right of action and does not create individual rights that are enforceable under a § 1983 action. Although students and their parents are intended to benefit from the ESSA, the ESSA contains no procedures, administrative or judicial, by which individuals can enforce violations of its provisions; only the Secretary of Education can enforce a state's violation of the ESSA.” 67B Am. Jur. 2d Schools § 350. See also Reaves v. Faulkner, No. 7:22-CV-40-FL, 2022 WL 19236195, at *2 (E.D. N.C. Oct. 12, 2022) (finding the ESSA, which amended the No Child Left Behind Act (“NCLB”), provides no private right of action), report and recommendation adopted, 2023 WL 2614573 (E.D. N.C. Mar. 23, 2023); Blakely v. Wells, 380 Fed.Appx. 6, 8 (2d Cir. 2009) (NCLB does not provide a private cause of action) (citing Home v. Flores, 557 U.S. 433, 456 n. (2009) (noting that “NCLB does not provide a private right of action” and “is enforceable only by the agency charged with administering it”).
In addition, because the complaint alleges Plaintiff and Defendants are citizens of New York (Dkt. No. 1 at 1-3), there is no diversity jurisdiction. Lever v. Lyons, No. 16-CV-5130, 2021 WL 302648, at *9 (E.D.N.Y. Jan. 28, 2021) (no diversity jurisdiction where parties were all citizens of New York). In any event, Plaintiff appears to seek only injunctive relief. (Dkt. No. 1 at 3-4.)
Because the Court lacks subject matter jurisdiction, the Court recommends dismissing Plaintiff's complaint without prejudice. Hollander v. Garrett, 710 Fed.Appx. 35, 36 (2d Cir. 2018); see also Humphrey v. Syracuse Police Dep't, 758 Fed.Appx. 205, 206-07 (2d Cir. 2019) (holding where a court dismisses a complaint for lack of subject matter jurisdiction, the court does “not have the power to reach the merits and dismiss the claims against the defendants for failure to state a claim, or to eventually dismiss the complaint with prejudice for failure to file a proposed amended complaint.”).
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, No. 1:17-CV-00423 (MAD/TWD), 2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017).
Although this Court has serious doubts about whether Plaintiff can amend to assert any form of federal jurisdiction over the situation Plaintiff describes in her complaint, in deference to Plaintiff's pro se status and out of an abundance of caution, the Court recommends granting Plaintiff leave to amend.
The Court advises Plaintiff that should she be permitted to amend her complaint, any amended pleading she 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 her claim. Plaintiff is cautioned that no portion of her prior complaint shall be incorporated into her amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth all of the claims she intends to assert against the Defendants and must demonstrate that a case or controversy exists between the Plaintiff and the Defendant which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. If Plaintiff is alleging the Defendants violated a law, she should specifically refer to such law.
III. CONCLUSION
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 the Clerk serve 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) on Plaintiff.
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.
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).
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).
IT IS SO ORDERED.