Opinion
22-CV-2349 (LTS)
05-16-2022
SHARIF KING, Plaintiff, v. SHAROD KING, Defendant.
ORDER TO AMEND
LAURA TAYLOR SWAIN CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is proceeding pro se and is currently incarcerated at Five Points Correctional Facility, invokes this Court's diversity jurisdiction, asserting a breach of contract claim against Defendant Sharod King, who is incarcerated at the Vernon C. Bain Center in Bronx, New York. By order dated April 7, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint 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, 47 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
The following facts are taken from the complaint. In June 2019, Plaintiff Sharif King and Defendant Sharod King entered into an agreement for the sale of a vehicle. The terms of the agreement included the following: (1) Plaintiff would sell his 1999 Prevost H3-45 coach bus to Defendant for $112,000, and (2) Defendant would deliver a check for the sale price to Plaintiff's agent in Stockbridge, Georgia. After Defendant took possession of the vehicle, Plaintiff learned that the check provided to Plaintiff's agent was “wholly fabricated . . . [and] was not associated with or drawn on any bank or account.” (ECF 2, at 2.)
According to records maintained by the New York State Department of Corrections and Community Supervision (“DOCCS”), DOCCS took custody of Plaintiff on December 21, 2018, before the sale of the vehicle to Defendant. See DOCCS, Inmate Information, Sharif King http://nysdoccslookup.doccs.ny.gOv/GCA00P00/WIQ3/WINQ130 .
From September 23, 2019, to May 28, 2020, “Defendant, without Plaintiff's knowledge, used the coach bus to traffic[ ] over 23 handguns, 10 high capacity magazines and hundreds of rounds of ammunition between Virginia and Queens, N.Y.” (Id. at 3.) On July 21, 2020, officers from the New York City Police Department arrested Defendant, charged him with sale and trafficking of firearms and ammunition, and seized the coach bus. Since the arrest, “Plaintiff has been unable to take possession [of the bus] because Defendant has already registered the vehicle in the name of his co-conspirator in the crimes charged by the N.Y.P.D.” (Id.)
Plaintiff brings a breach of contract claim and asserts that both New York and Georgia law apply. He also states that he is a resident of Georgia, as he resided in Georgia before his incarceration and plans to return to Georgia after his release. As for Defendant's residency, he only states that the Defendant is incarcerated in the Bronx. Plaintiff seeks $112,000 in compensatory damages.
DISCUSSION
A. Diversity Jurisdiction
The subject matter jurisdiction of the federal district courts is limited and is delineated generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available only when a “federal question” is presented or when plaintiff and defendant are citizens of different states and the amount in controversy exceeds the sum or value of $75,000.
Plaintiff invokes the Court's diversity jurisdiction but does not allege sufficient facts to demonstrate that the Court has jurisdiction of his state law claims. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). An individual is a citizen of the state where he is domiciled, which is defined as the place where he “has his true fixed home . . . and to which, whenever he is absent, he has the intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (internal quotation marks and citation omitted). For an individual who is “incarcerated in a state different from his previous domicile, there is a rebuttable presumption that the prisoner retains his pre-incarceration domicile rather than acquiring a new domicile.” Liverpool v. City of New York, No. 20-CV-4629, 2020 WL 3972737, at *3 (S.D.N.Y. July 13, 2020).
In addition, the plaintiff must allege to a “reasonable probability” that the claim is in excess of the sum or value of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (citation and internal quotation marks omitted).
Although Plaintiff alleges facts suggesting that his claim meets the jurisdictional amount, he does not allege enough facts to show that the parties are diverse. Specifically, Plaintiff alleges that he is a resident of Georgia and intends to return to that state, but he does not allege any facts regarding Defendant's residence before his incarceration. The Court therefore grants Plaintiff leave to amend his complaint to state facts regarding Defendant's pre-incarceration domicile.
B. Venue
Under 28 U.S.C. § 1391(b), a civil action may be brought in
a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
Under § 1391(c), a “natural person” resides in the district where the person is domiciled.
Plaintiff asserts that the events giving rise to his claims occurred in Stockbridge, Henry County, Georgia, where Defendant provided Plaintiff's agent with a check for payment of Plaintiff's vehicle. This District is therefore not a proper venue for this action under Section 1391(b)(2). Under that venue provision, the Northern District of Georgia appears to be a proper venue.
Venue also may not be proper in this District under Section 1391(b)(1), because it is unclear where Defendant was domiciled before his arrest. Thus, the Court advises Plaintiff that, if Plaintiff files an amended complaint and states facts suggesting that this District is not a proper venue, the Court may transfer the action to the Northern District of Georgia, a proper venue under Section 1391(b)(2).
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment 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). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid breach of contract claim of which the federal courts have jurisdiction, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against the defendant. If Plaintiff has an address for the named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint, ” and label the document with docket number 22-CV-2349 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.