United States District Court, E.D. New York
DAVID K. ROEMER, Plaintiff,
JERMAINE F. WILLIAMS, Defendant.
MEMORANDUM & ORDER
WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE.
December 5. 2019, Plaintiff David K. Roemer
("Roemer"), appearingpra se, filed this
fee-paid complaint pursuant to 42 U.S.C. § 1983 seeking
injunctive relief against Defendant Jermaine F. Williams,
President of Nassau Community College in Garden City, New
York, based on an alleged violation of his First Amendment
rights under the United States Constitution. Because Roemer
has failed to allege facts showing that he has standing to
demand that professors at Nassau Community College include
his position statement on global warming, the complaint is
dismissed as the Court does not have subject matter
Court assumes the truth of the allegations in the Complaint
for the purpose of this Memorandum and Order. Plaintiff,
David Roemer, Ph.D., a resident of Brooklyn, has authored a
"one-page document with 12 enumerated paragraphs to
students taking Prof. Cohen's course on climatology [at
Nassau Community College]. The document explains why the
political movement to reduce the use of fossil fuels is a
malicious hoax.'' (hereinafter "position
paper"). Compl. at 2 and set forth in full at 2-3.
Although there is no indication that Roemer has any
affiliation with the college, on November 20, 2019, he sent
his position paper via email to Professor Bruckner, Chair of
the Department of Physical Science at Nassau Community
College. On November 21, 2019, Bruckner responded that
plaintiff is "mistaken about global warming/climate
change being a malicious hoax" and suggested that
plaintiff "audit [Professor] Richard Cohen's course
on climatology." Id. at 4. Via email, mail and
facsimile, plaintiff Has submitted to Jermaine F. Williams,
President of Nassau Community College, a request for
permission to distribute the position paper "to my
possible future classmates in Prof. Cohen's class."
Id. Plaintiff files this action seeking an order
requiring the distribution of his position paper "or a
version of the document that Prof. Cohen and I can agree
about" to the students, enrolled in Professor
Cohen's class at Nassau Community College. He names as
the only defendant President Williams, on the basis that he
is the supervisor of Bruckner and Cohen. Id. at 2.,
Court is mindful that "[a] document filed pro
se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (internal quotations and citation omitted). A
complaint must contain "sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotations and citation
omitted). "[A] plaintiffs obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level" BellAtl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotations,
brackets, and citation omitted).
of whether a plaintiff has paid the filing fee, a district
court has the inherent power to dismiss a case sua
sponte if it determines that the action is frivolous or
that the court lacks jurisdiction over the matter.
Fitzgerald v. First E. Seventh St. Tenants Corp.,
221 F.3d 362, 363-64 (2d Cir. 2000); see also Fed.
R. Civ. P. 12(h)(3). "[F]ailure of subject matter
jurisdiction is not waivable and may be raised at any time by
a party or by the court sua sponte. If subject
matter jurisdiction is lacking, the action must be
dismissed." Lyndonville Sav. Bank & Tr. Co. v.
Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). An action
is frivolous as a matter of law when, inter alia, it
is "based on an indisputably meritless legal
theory"-that is, when it "lacks an arguable basis
in law..., or [when] a dispositive defense clearly exists on
the face of the complaint." Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 473 (2d Cir. 1998).
III of the Constitution limits the jurisdiction of federal
courts to 'Cases' and 'Controversies. One
component of the case-or-controversy requirement is standing,
which requires a plaintiff to demonstrate the now-familiar
elements of injury in fact, causation, and
redressability." Lance v. Coffman, 549 U.S.
437, 439, (2007). Plaintiff, as the party seeking to invoke
the Court's jurisdiction, must establish that he has
standing, and by extension, that subject matter jurisdiction
exists. United States v. Hays, 515 U.S. 737, 742
(1995) ("The federal courts are under an independent
obligation to examine their own jurisdiction, and standing
'is perhaps the most important of [the jurisdictional]
doctrines.'") (quoting FW/PBS, Inc. v.
Dallas, 493 U.S. 215, 230-31(1990)).
the standing requirement, "a plaintiff must show an
injury in fact-his pleading and proof that he has suffered
the "invasion of a legally protected interest" that
is "concrete and particularized," i.e.,
which "affect[s] the plaintiff in a personal and
individual way." See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560, n. 1 (1992). Thus,
"[s]tanding to sue, in the Constitutional sense, 'is
the showing by a plaintiff that his particular grievance
meets this standard, the 'essence' of which is the
presence of 'injury in fact' suffered by the
plaintiff as a result of the defendant's
actions.'" Brady v. Basic Research, LLC,
101 F.Supp.3d 217, 227 (E.D.N.Y. 2015) (Feuerstein, J.)
(quoting Evans v. Hills, 537 F.2d 571, 591 (2d Cir.
1975)); see Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 103 (1998) (noting that an
injury-in-fact is "[f]irst and foremost" among the
elements of Article III standing). In general, an
injury-in-fact "must be concrete and particularized, and
actual or imminent, not conjectural or hypothetical."
Elliott v. City of New York, 06-CV-296, 2010 WL
4628508, 2010 U.S. Dist. LEXIS 121334, at *31, (S.D.N.Y. Nov.
15, 2010) (Patterson, J.) (citing Lujan, 504 U.S. at
after construing Plaintiffs complaint to "raise the
strongest arguments" it suggests, this Court finds that
Plaintiff has failed to allege that he has Article III
standing. Roemer essentially alleges he-despite his lack of
any affiliation with Nassau Community College-has the First
Amendment right to have Professor Cohen disseminate his
position paper on global warming to the students enrolled in
a course on climatology at Nassau Community College. Roemer
has not alleged any facts establishing any legally cognizable
relationship with the Defendant, nor has he demonstrated that
he personally suffered any legally cognizable
injury. See, e.g., Hays, 515 U.S. at 743 (noting it
is well settled that the constitutional minimum Of standing
requires, among other things, that a plaintiff allege that he
or she has suffered an injury in fact, which is a concrete
and particularized invasion of a legally protected interest
that is actual or imminent). Even with liberal construction,
Plaintiffs injury is at best hypothetical. Plaintiff is
neither enrolled in the course nor in the college; the
course's curriculum cannot be said to interfere with the
exercise of his freedom of speech. See, e.g., Mincone v.
Nassau Cty. Cmty. Coll., 923 F.Supp. 398, 404-05
(E.D.N.Y. 1996) (Spatt, J.) (discussing standing and finding
that the plaintiffs who were not enrolled in the challenged
course at the college did not have standing based on their
status as county taxpayers to assert free exercise of
religion claims). Therefore, the complaint is dismissed for
lack of subject matter jurisdiction. Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000) (a case is
properly dismissed for lack of subject matter jurisdiction
when the district court lacks the statutory or constitutional
power to adjudicate it).
even if Roemer had standing, his claim is frivolous because
there is no legal theory on which he can rely. See
Livingston, 141 F.3d at 437. There is no basis for this
Court to order Nassau Community College officials to invite
Roemer to distribute his position paper to students or to
hold them liable for failure to do so. Roemer v. Attorney
Grievance Comm., 17-CV-703 (PKC) (ECF No. 13, Order
dated Feb. 24, 2017) (S.D.N.Y. 2017) (Castel, J.) (Plaintiffs
fee-paid pro se complaint alleging inter
alia that Columbia University's refusal to invite
him to lecture or teach on a subject violated his First
Amendment rights dismissed sua sponte as frivolous).
Plaintiffs complaint is dismissed without prejudice for lack
of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3).
Plaintiff paid the filing fee to commence this action, the
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and therefore
in forma pauperis status is denied for the purpose
of any appeal. Coppedge v. United States, 369 U.S.
438, 444-45 ...