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United States District Court, S.D. New York

August 29, 2005.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



Plaintiff Edward Cloyce ("Cloyce"), proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 against Macy's Department Store ("Macy's") and Kenneth Scarborough ("Scarborough"), a security guard employed by Macy's. Cloyce alleges that he sustained injuries caused by Scarborough during an unlawful arrest.

  Before the Court is the defendants' motion, made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss the claim on the ground that the court lacks subject matter jurisdiction. The plaintiff opposes the motion. It is addressed below.


  According to an incident report prepared by Scarborough, on July 11, 2004, he was notified by store security personnel that they had observed Cloyce concealing merchandise in two large gift bags. When Scarborough approached him, Cloyce put down the gift bags and fled. Scarborough retrieved the bags and returned the merchandise to store security. Scarborough then received a call from another Macy's employee, who had continued to follow Cloyce. The employee informed Scarborough that Cloyce had gone to the store's luggage department and that he was armed with a knife. When Scarborough arrived at the scene, he found Cloyce with the knife in his hand. Scarborough identified himself as a security officer and three times commanded Cloyce to drop the knife. When Cloyce refused to obey the commands, Scarborough knocked the knife out of his hands, handcuffed him and escorted him to store security. Cloyce was searched but no additional weapons were found. The merchandise taken by Cloyce was returned to the store's stock.

  Cloyce alleges that when he handed Scarborough the knife in surrender, Scarborough forcefully disarmed him. As a result, Cloyce maintains, he suffered an injury to his right hand and continues to suffer emotional distress. Cloyce commenced the instant action on October 23, 2004. He claims that Scarborough attacked him with "malice and vindictiveness." In addition, Cloyce appears to claim that the defendants were negligent and that he was unlawfully arrested and falsely imprisoned. He seeks compensatory damages.


  A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, only if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004). In considering a motion made pursuant to Fed.R.Civ.P. 12(b)(1), "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Id. Further, in any analysis of such a motion, "the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists." Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004).

  The court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995). Additionally, where, as here, the plaintiff is pro se, his or her pleadings "are [to be] held `to less stringent standards than formal pleadings drafted by lawyers,'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 175 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595 [1972]), and should be interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 [2d Cir. 1994]). This liberal pleading standard is particularly applicable where a pro se plaintiff alleges a violation of his or her civil rights. See Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005).

  Section 1983 Claims

  In order to bring a claim under § 1983, the plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]). "Allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).

  In the case at bar, Cloyce fails to allege that his injuries are the result of state action or that the conduct complained of deprived him of his constitutional rights. Indeed, although the standardized form upon which the complaint is written contains the heading, "Complaint under the Civil Rights Act, 42 U.S.C. § 1983," the claims presented in the complaint, even liberally construed, do not appear to be cognizable under § 1983. Rather, the complaint appears to raise only state law claims alleging, among other things, negligence and false imprisonment.

  Diversity Jurisdiction

  28 U.S.C. § 1332 provides, in pertinent part: "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs and is between citizens of different States." 28 U.S.C. § 1332(a)(1). A party's citizenship, for purposes of diversity jurisdiction, depends on his or her domicile at the time a case a filed. Domicile is "the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (citations omitted). A prisoner is presumed to retain the domicile he or she had at the time of incarceration. See Fermin v. Moriarty, No. 96 Civ. 3022, 2003 WL 21787351, at *2 (S.D.N.Y. Aug. 4, 2003).

  In an affidavit submitted in support of the instant motion, Mitchell Leventhal, Executive Vice President and Chief Financial Officer for Macy's, avers that Macy's is a corporation incorporated in the state of Ohio and that it maintains its principal place of business at 152 West 34th Street, New York, New York, 10001. "[A] corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business. . . ." 28 U.S.C. § 1332(c)(1). Since Macy's has its principal place of business in New York, it is a citizen of that state. Additionally, defendant Scarborough, who resides at 173 Bainbridge Street, Brooklyn, New York, 11233, also is a citizen of New York. Cloyce contends that he is a citizen of New York only because he is currently incarcerated at the Upstate Correctional Facility. However, a statement made by Cloyce at the time of the Macy's incident gives his address as "100 Undomicle, 1, New York, New York, 10019." Since a prisoner retains his preincarceration domicile, and since Cloyce has failed to allege any alternative domicile for the purposes of diversity jurisdiction, the Court concludes that he is a citizen of New York. Therefore, because all parties to this action are domiciled in the same state, diversity of citizenship is lacking.

  As noted above, Cloyce's complaint, even when liberally construed, appears to raise only state law claim(s). Since the court does not have jurisdiction over a state law claim where, as here, there is no diversity of citizenship, the court lacks subject matter jurisdiction, as contemplated by 28 U.S.C. § 1332. Furthermore, because Cloyce does not appear to have plead a discernible § 1983 claim, or any other claim arising under the Constitution or laws of the United States, this court cannot entertain his complaint pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). Accordingly, since the plaintiff has not met his burden of proving by a preponderance of evidence that subject matter jurisdiction exists in this case, the complaint should be dismissed.


  For the reasons set forth above, I recommend that the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction be granted.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any response to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 1205, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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