United States District Court, S.D. New York
August 29, 2005.
EDWARD CLOYCE, Plaintiff,
MACY'S DEPARTMENT STORE, ET AL., Defendants.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
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
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
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 ), 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.
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
For the reasons set forth above, I recommend that the
defendants' motion to dismiss the complaint for lack of subject
matter jurisdiction be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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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