17

‐ 144

‐ cv

Lamb v. Cuomo

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC

DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING

TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

1

At a stated term of the United States Court of Appeals for the Second 2

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3

Square, in the City of New York, on the 2 nd day of October, two thousand 4

seventeen. 5

6

PRESENT: RAYMOND J. LOHIER, JR., 7

CHRISTOPHER F. DRONEY, 8

Circuit Judges, 9

JED S. RAKOFF, 10

District Judge. * 11

_____________ _______________ ______________ 12

13

DEBORAH LAMB, JOHN MECCA, PRO SE 14

AS SOVERIGN PEOPLE OF THE UNITED 15

STATES, 16

17

Plaintiffs

‐ Appellants

, 18

19

v. No. 17

‐ 144

‐ cv 20

21

ANDREW M. CUOMO, THE GOVERNOR FOR 22

N.Y.S., HOWARD A. ZUCKER, THE PUBLIC 23

HEALTH COMMISSIONER FOR N.Y.S., ERIC T. 24

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New

York, sitting by designation.2 SCHNEIDERMAN, THE ATTORNEY GENERAL 1

FOR N.Y.S, JANET DIFIORE, THE CHIEF JUDGE 2

AND THE HEAD OF THE NEW YORK STATE 3

COURT SYSTEM, COUNTY OF SUFFOLK, THE 4

MUNICIPALITY, STEVE BELLONE, THE 5

SUFFOLK COUNTY EXECUTIVE, THOMAS J. 6

SPOTA, THE SUFFOLK COUNTY DISTRICT 7

ATTORNEY, ANN MARIE CSORNY, THE 8

ACTING DIRECTOR SUFFOLK COUNTY 9

MENTAL HYGIENE, DR. JAMES L. 10

TOMARKEN, THE SUFFOLK COUNTY 11

COMMISSIONER OF PUBLIC HEALTH, JOHN 12

F. O’NEILL, THE SUFFOLK COUNTY 13

COMMISSIONER OF SUFFOLK COUNTY 14

SOCIAL SERVICES, TIMOTHY D. SINI, THE 15

SUFFOLK COUNTY POLICE COMMISSIONER, 16

VINCENT F. DEMARCO, THE SUFFOLK 17

COUNTY SHERIFF, JUDITH A. PASCALE, THE 18

SUFFOLK COUNTY CLERK, ANN MARIE 19

SULLIVAN, THE MENTAL HEALTH 20

COMMISSIONER FOR N.Y.S., 21

22

Defendants

‐ Appellees

, 23

24

JOHN DOE(S), #1–20, 25

26

Defendants

. 27

_____________ _______________ ______________ 28

29

FOR APPELLANTS: D EBORAH L AMB

, pro se

, John Mecca, pro se

, 30

Kings Park, NY. 31

32

FOR STATE APPELLEES: S COTT A. E ISMAN (Barbara D. Underwood, 33

Solicitor General, Steven C. Wu, Deputy 34

Solicitor General, David Lawrence III, 35

Assistant Solicitor General, on the brief ), for 36

Eric T. Schneiderman, Attorney General for 37

the State of New York, New York, NY. 383 1

FOR COUNTY APPELLEES: Christopher A. Jeffreys, Assistant County 2

Attorney, for Dennis M. Brown, Suffolk 3

County Attorney, Hauppauge, NY. 4

5

Appeal from a judgment of the United States District Court for the Eastern 6

District of New York (Joanna Seybert, Judge ). UPON DUE CONSIDERATION, 7

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of 8

the District Court is AFFIRMED. 9

Appellants Deborah Lamb and John Mecca, proceeding pro se, appeal from 10

a judgment of the District Court (Seybert, J.) sua sponte dismissing their suit 11

brought under 42 U.S.C. § 1983. We assume the parties’ familiarity with the facts 12

and record of the prior proceedings, to which we refer only as necessary to 13

explain our decision to affirm. 14

We have not yet addressed whether we review de novo or for abuse of 15

discretion a district court’s sua sponte dismissal of a complaint for frivolousness 16

where the litigant has paid the filing fee. Fitzgerald v. First E. Seventh St. 17

Tenants Corp., 221 F.3d 362, 364 & n.2 (2d Cir. 2000). We need not reach that 18

issue here because the District Court’s decision “easily passes muster under the 19

more rigorous de novo review.” Id. at 364 n.2. A claim is frivolous “where it 204 lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 1

319, 325 (1989). District courts should generally not dismiss a pro se complaint 2

without permitting at least one opportunity to amend, but granting leave to 3

amend is not necessary when it would be futile. See Cuoco v. Moritsugu, 222 4

F.3d 99, 112 (2d Cir. 2000). 5

Upon review, we find no error in the District Court’s dismissal of 6

appellants’ complaint because, even when read with the “special solicitude” due 7

pro se pleadings, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 8

2006), their allegations “rise to the level of the irrational or the wholly incredible, 9

whether or not there are judicially noticeable facts available to contradict them,” 10

Denton v. Hernandez, 504 U.S. 25, 33 (1992). And given the wholly incredible 11

nature of the alleged facts upon which appellants’ claims are based, the District 12

Court reasonably concluded that granting leave to amend would be futile. See 13

Cuoco, 222 F.3d at 112. 14

We have considered appellants’ remaining arguments and conclude that 15

they are without merit. Accordingly, we AFFIRM the District Court’s judgment. 16

FOR THE COURT: 17

Catherine O’Hagan Wolfe, Clerk of Court 18

19