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Kaplan v. Elmendorf

United States District Court, E.D. New York

April 30, 2014

DEBRA MARY KAPLAN, Plaintiff,
v.
SUSAN KAPLAN ELMENDORF, MONICA KAPLAN TACOMA, ANTHONY TACOMA, ASTORIA BANK, Defendants.

ORDER

SANDRA J. FEUERSTEIN, District Judge.

On April 1, 2014, pro se plaintiff Debra Mary Kaplan ("plaintiff") filed a complaint in this Court against defendants Susan Kaplan Elmendorf ("Elmendorf"), Monica Kaplan Tacoma ("M. K. Tacoma"), Anthony Tacoma ("A. Tacoma") and Astoria Bank ("the Bank"), presumably pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging, inter alia, violations of her First Amendment right to free speech and "bank fraud, " accompanied by an application to proceed in forma pauperis. On April 4, 2014, plaintiff filed an amended complaint against the same defendants, also presumably pursuant to Section 1983, alleging, inter alia, violations of her First Amendment right to free speech, "fraudulent transfer, " conspiracy and negligence.

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 issua sponte dismissed in its entirety pursuant to 28 U.S.C. §§ 1367(c)(3) and 1915(e)(2)(B)(ii).

I. The Complaint and Amended Complaint[1]

A. The Complaint

In her original complaint, plaintiff alleges that between March 25, 2014 and March 31, 2014, Elmendorf, M. K. Tacoma and A. Tacoma (collectively, "the individual defendants") fraudulently transferred funds from a trust account held at the Bank by plaintiff's mother, Lillian Kaplan, who died on March 31, 2014. (Complaint ["Comp]."], ¶ III.B. and C.) Specifically, plaintiff alleges that on or about March 28, 2014, while her mother was hospitalized and dying from cancer, Elmendorf called the Bank and "forcefully had Lillian Kaplan tranfer [sic] a trust account out of [plaintiff s] name and lied to bank officials to embezzle and steal money." (Compl. at ¶ III.C.) Plaintiff claims that the individual defendants "all together schemed this fraudulent tranfer [sic]." (Id.) Plaintiff also claims that the individual defendants violated her First Amendment right "to free speech to be allowed to be with and talk to [her] mother passing away, " (Compl. at II.B.), and "to be with [her] mother when she died." (Compl. at ¶ V.) Plaintiff seeks to recover damages in the amount of two million dollars ($2, 000, 000.00) for "emotional distress of forefully [sic] denying my right to be with my mom when she died." (Compl. at ¶ V.)

B. The Amended Complaint

In her amended complaint, plaintiff alleges a violation of her First Amendment right to free speech on the basis that she "was prevented to be with mother at her last hours of life." (Amended Complaint ["Am. Compl."] at ¶ II.B.) The amended complaint alleges that between March 20, 2014 and March 31, 2014:

"Violation of NY Code 4201[2] - Defendants denied my right to plan funeral. * * * Fraudulent Transfer, trickery, Malicious Jealousy, secretley [sic] keeping me away from the banktranfer [sic][.] Use of deception to gain victims [sic] confidence, Conspiracy to remove me as beneficiary of my mothers [sic] bank account, and used coercion and undue influence, laudering [sic] money from checking account to empty estate clean social security deposits taken, Burial life insurance policies and all papers taken away from me and my mother[.] Susan Elmendorf-Fraudulent Transfer, [sic] Conspiracy to remove me as a beneficiary[, ] coercion and undue influence, Duress. Monica Tacoma-, Conspiracy to remove me as beneficiary, coercion and undue influence[.] Anthony Tacoma Sr[.]-, Conspiracy to remove me as beneficiary, Harassment and intimidation[.] Astoria Bank-carelessness, lack of supervision and training, negligence caused Fraudulent Transfer[.]
Good [S]amaritan Hospital nurses administered a [sic] end of life Narcotic medication Morphine and soon after the defendants Conspired to remove me as beneficiary of my mothers [sic] bank and used undue influence [and] coercion and communicated with the bank to scheme a way not to alert the bank that she was heavily drugged To quickly transfer funds over the telephone days and hours before her death. The defendant contiued [sic] there [sic] coecion [sic], undue influence, while she was hemmoriaging [sic] blood. On several occasions[, ] Lillian [K]aplan made several calls to [S]uffolk [C]ounty police 911 operators and stated checks were missing and personal itiems [sic] and she said Susan [E]lmendorf took them. All police reports are on file[.] Complaints from Lillian [K]aplan stating abuse from Susan Elmendorf to Lillian social worker at Good [S]amaritan."

(Am. Compl. ¶ III.C.) As a result of the foregoing, plaintiff claims: "Mental Anguish[, ] Psychological distress[, ] Loss of beneficiary[, ] Not allowing me to be part of the final funeral plans for my mother[, ] Not permitting me to be with my mother when she died[, ] All three Defendants on April 1[, ] 2014 at my mothers [sic] apartment charged me and use [sic] force and Intimidation[, ] Police were called[] [and] Violation of NY Code 4201." (Am. Compl. ¶ IV.) Plaintiff seeks to recover damages in the sum of two million dollars ($2, 000, 000.00). (Am. Compl. ¶ V.)

II. Discussion

A. Standard of Review

Under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted or seeks ...


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