Opinion
19-CV-10665 (CM)
12-06-2019
REGINA LEWIS, Plaintiff, v. VALENTINA DITOMASSO; INDEPENDENT LIVING INC.; SAFE HARBORS OF THE HUDSON INDEPENDENT LIVING INC.; ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICE, Defendants.
ORDER OF DISMISSAL :
Plaintiff Regina Lewis filed this complaint asserting disability discrimination claims against Valentina Ditomasso, Independent Living Inc., Safe Harbors of the Hudson Independent Living Inc., and the Orange County Department Of Social Service. ECF 1:19-CV-10665, 2. The Court grants Plaintiff leave to proceed in forma pauperis, but dismisses this action without prejudice.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis 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. 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 AND DISCUSSION
The Second Circuit has instructed the district courts not to make a merits determination in an incompetent person's federal civil action unless the incompetent person is represented by a guardian ad litem who is represented by counsel. See Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 134-35 (2d Cir. 2009). District courts may dismiss such an action without prejudice if the incompetent person lacks counsel. See id. at 135.
On October 10, 2017, after conducting a competency hearing under Rule 17 of the Federal Rules of Civil Procedures in Lewis v. Newburgh Hous. Auth., ECF 1:11-CV-3194, 201 (LMS), Magistrate Judge Lisa Margaret Smith determined that Regina Lewis "is not legally competent to proceed without the appointment of a [guardian ad litem]." (Id. at 21). Accordingly, unless Plaintiff files a civil action through a guardian ad litem who is (or will be) represented by counsel, the Court must dismiss Plaintiff's civil actions without prejudice. The Court therefore dismisses this action without prejudice because Plaintiff has filed it without a guardian ad litem.
In Lewis, No. 1:11-CV-3194, the Court located pro bono counsel for Plaintiff and appointed Plaintiff's brother guardian ad litem, but he later withdrew. Counsel attempted to secure a replacement guardian ad litem through an Article 81 proceeding that counsel filed in state court. On April 19, 2018, pro bono counsel informed the Court that she withdrew the Article 81 state-court petition because "it was determined that [Plaintiff] will remain non-compliant and unprepared to participate." Id. (ECF No. 179).
Plaintiff recently filed another complaint arising out of her housing situation. See Lewis v. Bourne & Kenney Redevelopment Co., ECF 1:19-CV-9560, 4 (S.D.N.Y. Oct. 29, 2019) (dismissing complaint without prejudice in light of Judge Smith's order), appeal pending (2d Cir.). --------
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed without prejudice because she can proceed in this Court only through a guardian ad litem.
The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002.
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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: December 6, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge