United States District Court, E.D. New York
SANDRA J. FEUERSTEIN, District Judge.
On January 22, 2014, pro se plaintiff Eileen Casino ("plaintiff") filed: (1) a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") against defendants Brian Cassidy ("Cassidy"), Stony Brook University Hospital ("Stony Brook"), Woodmere Nursing Home ("Woodmere"), "any other future agent of any kind" and the New York State Mental Health Court ("the State Court"), seeking to assert claims on behalf of herself and Donato Casino ("Mr. Casino") concerning, inter alia, (a) the treatment and care of Mr. Casino at Stony Brook and Woodmere; and (b) court proceedings in which defendant Brian Cassidy ("Cassidy") acted as Mr. Casino's law guardian; and (2) an application to proceed in forma pauperis. Since plaintiff's financial status, as set forth in her declaration in support of her application to proceed in forma pauperis, qualifies her to commence this action without prepayment of the filing fees, see 28 U.S.C. § 1915(a)(1), her application to proceed in forma pauperis is granted. However, for the reasons set forth below, the Complaint is sua sponte dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 12(h)(3) of the Federal Rules of Civil Procedure.
I. Prior Litigation
A. The First Casino Action
On September 11, 2013, plaintiff filed in this Court, inter alia, a complaint pursuant to Section 1983 against Cassidy, "Mr. Rohl, as owner/admin, " "Suffolk County Employees of Court, " "N.Y. State Court Employees, " and a judge of the "N.Y. State M.H. Court, " among others, alleging violations of Mr. Casino's civil rights relating to his treatment and care in an unidentified nursing home and to court proceedings in which Cassidy acted as his law guardian, which was assigned docket number 13-cv-5095 ("the first action"). By Order dated November 8, 2013, inter alia: (1) plaintiff's claims in the first action were sua sponte dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) for lack of standing and failure to state a claim for relief; and (2) Mr. Casino's claims in the first action were sua sponte dismissed without prejudice on the basis that plaintiff, who is not an attorney, could not assertpro se claims on his behalf.
13. The Second Complaint
On October 28, 2013, plaintiff filed, inter cilia, another complaint in this court pursuant to Section 1983 against Stony Brook, Cassidy and Woodhaven Nursing Home alleging, inter alia, that the defendants therein were "not always acting in the best interest of [Mr.] Casino or his family or according to all our wishes" and "unfair competition for family time with my husband, " (Comp]. under docket number 13-cv-6357 at 1-2), which was assigned docket number 13-cv-6357 ("the second action"). By Order dated January 27, 2014 (the "January Order"), inter alia: (1) plaintiff's claims against Stony Brook were sua sponte dismissed pursuant to Rule 12(1)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction; (2) plaintiff's Section 1983 claims against Woodhaven and Cassidy were sua sponte dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for relief; and (3) any state law claims were dismissed without prejudice pursuant to 28 U.S.C. § 1367.
II. The Instant Action
On or about January 22, 2014, plaintiff filed the instant complaint alleging:
"[At Stony Brook on] 12/21/13 I found Dan with purple blotchy face working hard at breathing while on resp. - no resp. to call bell.... When I stated that there was a pending court matter against Dan's law guardian and if there is complicity in deliberate failure of response to crisis for a virtual DNR then there would be a wrongful death suit. Also if you get compliance from Brian [Cassidy]- get his signature - then there was rapid response. I couldn't believe it- after so many mos. of reasonable comfort on unit 9 this happened there.
[On] January 17, 2014, 3-4 pm = arr. 6 pm Woodmere [Nursing] Home in Nassau County. Stonybrook was notified by myself of pending NY State Court Conference about Brian [Cassidy] [and] a request for a restraining order submitted to Fed Courtin spite of this Stony Brook transferred [Mr. Casino] to Woodmere [Nursing] Home in spite of bacterial pneumonia [and] red face, difficulty breathing. Ask Woodmere how long before Dan was conscious for on [arrival].
Both times, compliance against best interest [and] wish of pt [and] family resulting in setbacks of health at Stonybrook [sic] Hospital between 9/13 & 1/14. These people should pay cost of recovery [and] amenities as T.V. [and] phone to help him feel comfortable [and] focused [and] cared for at Woodmere."
(Compl. ¶¶ III, IV). Plaintiff seeks: (1) an order directing defendants to "turn over all monies which should be rightfully returned to Dan's personal acct. at his address for pain [and] suffering over neglect [and] money ret'd which was paid for care not given on both occasions aforementioned, " ( Id. at ¶ V); (2) an "emergency restraining order to prevent any deliberat [sic] action or neglect leading to serious setback or espiacialy [sic] leading to death (i.e. neglect to get help or pulling plug') for any reason by anyone, " (Id); and (3) to hold Cassidy "responsible to sue in small claims for return of money from Medicaid [and] Medicare which was pd. for malpractice." ( Id. )
A. Subject Matter ...