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Sahm v. Paradise Mountain Mobile Home Park

United States District Court, Second Circuit

September 24, 2013

ERIC D. SAHM, SR., Plaintiff,
v.
PARADISE MOUNTAIN MOBILE HOME PARK and VANDERBUILT MORTAGE CO., Defendants.

ERIC D. SAHM, SR. Plaintiff, pro se

ORDER and REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

The Clerk has sent to the court complaint, filed by pro se plaintiff, Eric D. Sahm, Sr., written on a form used for civil rights actions under 42 U.S.C. § 1983, and transferred to this district from the Western District of New York. (Compl./Trans. Order) (Dkt. Nos. 1, 6). Plaintiff has also filed a motion to proceed in forma pauperis ("IFP") (Dkt. No. 5).

I. IFP Application

A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). This court agrees, and finds that plaintiff is financially eligible for IFP status.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(B)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint under the above standards.

II. Complaint

Plaintiff alleges that in July of 2011, he and his family were illegally evicted from their mobile home, located in defendant Paradise Mountain Mobile Home Park ("Paradise"). (Compl.; First Claim at p.5). Plaintiff claims that defendant Paradise broke into his home; confiscated his animals; boarded up the doors and windows; told him that his family was not allowed into the park; and prevented him from retrieving any of his property. Plaintiff also alleges that defendant Vanderbuilt Mortgage Company ("Vanderbuilt") foreclosed on his mobile home without serving him with any papers and without any court proceedings.

Plaintiff claims that he is bringing this action under 42 U.S.C. § 1983 for violations of his Fourth, Fifth, and Fourteenth Amendment rights. He claims violations of "due process;" "search & seizure, " and "equal protection." (Compl. First Claim and Second Claim at pp.5-6). Plaintiff seeks a substantial amount of monetary damages. ( Id. at p.6).

III. Jurisdiction

A. Legal Standards

Subject matter jurisdiction can never be waived or forfeited. ACCD Global Agriculture, Inc. v. Perry, No. 12 Civ. 6286, 2013 WL 840706, at *1 (S.D.N.Y. March 1, 2013) (quoting Dumann Realty, LLC v. Faust, No. 09 Civ. 7651, 2013 WL 30672, at *1 (S.D.N.Y. Jan. 3, 2013) (citing Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 648 (2012); Henderson ex rel. Henderson v. Shinseki, ___ U.S. ___, 131 S.Ct. 1197, 1202 (2011)). ...


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