United States District Court, N.D. New York
DON HAMRICK, No current Address.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff pro se, Don Hamrick, filed this complaint, along with (1) a request to proceed In Forma Pauperis ("IFP"); (2) a motion to appoint counsel; (3) an application to participate in CM/ECF without paying fees; (4) a request to have the U.S. Marshals serve the summons and complaint; (5) a motion to remove a Watervliet City Court action to federal court; and (6) a motion for preliminary injunction. See Dkt. No. 1.
On March 4, 2014, Magistrate Judge Christian F. Hummel issued a Report-Recommendation and Order granting Plaintiff's IFP application, and recommending that Plaintiff's complaint be dismissed for failure to establish jurisdiction and failure to state a claim upon which relief may be granted. See Dkt. No. 10 at 12. The Report-Recommendation and Order also recommended that the Court dismiss Plaintiff's remaining motions as moot. See id.
When a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the court determines that... the action or appeal (i) is 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). In making this determination, "the court has the duty to show liberality towards pro se litigants, " however, "there is a responsibility on the court to determine that a claim has some arguable basis in law before permitting a plaintiff to proceed with an action in forma pauperis." Moreman v. Douglas, 848 F.Supp. 332, 333-34 (N.D.N.Y. 1994) (internal citations omitted).
Magistrate Judge Hummel recommended dismissal of Plaintiff's complaint, determining that the Court lacked subject matter jurisdiction to hear this case. See Dkt. No. 10. Magistrate Judge Hummel found that no federal question exists as Plaintiff failed to identify any violation of his constitutional or federal rights. See id. at 3-5. Further, the Report-Recommendation and Order found that Plaintiff failed to establish diversity jurisdiction in this case, and that even if Plaintiff could show that the parties were in complete diversity, Plaintiff failed to reasonably demonstrate that at least $75, 000 would be in controversy. See id. at 10-12.
Plaintiff objects to Magistrate Judge Hummel's recommendation, claiming that he has raised a federal question based on Defendants' alleged violations of his constitutional rights and of federal statutes. Plaintiff further objects to the Report-Recommendation and Order, arguing that complete diversity does exist in this case as Defendant lives a nomadic life outside of the State of New York.
A. Federal Question
1. 42 U.S.C. § 1981
To state a claim under 42 U.S.C. § 1981, a plaintiff must allege the following: "(1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute [(i.e., make and enforce contracts, sue and be sued, give evidence, etc.)]...." Olivera v. Town of Woodbury, 281 F.Supp.2d 674, 684 (S.D.N.Y. 2003) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)).
Magistrate Judge Hummel found that Plaintiff "failed to include any facts which would indicate that he is a member of a racial minority, an intent to discriminate on the basis of race, or that such discrimination interfered with the elements outlined in the statute." See Dkt. No. 10 at 6. Magistrate Judge Hummel also stated that, even in reading the complaint very liberally, there was nothing that indicated purposeful discrimination against Plaintiff by any of the named Defendants. See id. Further, Magistrate Judge Hummel recommended dismissal without amendment due to the fact that even if Plaintiff could sufficiently demonstrate discriminatory intent in his complaint, it would fall outside of the three-year statute of limitations period for section 1981 claims. See id. (citing Johnson v. Nyack Hosp., 891 F.Supp. 155, 162 (S.D.N.Y. 1995)).
Plaintiff objects to the recommendations regarding his section 1981 claim. In regard to the merits of his section 1981 claim as it is currently pleaded, Plaintiff only cites to a law review article which states that section 1981 applies to racial discrimination towards groups other than African Americans and discusses whether national origin discrimination claims may be brought under the section. See Dkt. No. 11 at 2-3. While this is presumably an attempt by Plaintiff to argue that he need not belong to a racial minority to bring a section 1981 claim, Plaintiff has alleged no facts from which a purposeful discriminatory ...