United States District Court, D. Delaware
Brodsky, Great Neck, New York. Pro Se Plaintiff.
NOREIKA, U.S. DISTRICT JUDGE.
Jay Brodsky (“Plaintiff), filed this action on March
15, 2019. (D.I. 2). He appears pro se and has been
granted leave to proceed in forma pauperis. (D.I.
7). Plaintiff asserts jurisdiction by reason of diversity, 28
U.S.C. § 1332. The Court proceeds to review and screen
the matter pursuant to 28 U.S.C. § 1915(e)(2)(B).
September 20, 2017, Plaintiff filed an action in the United
States District Court for the Eastern District of New York
(“EDNY Court”) against J.P. Morgan Chase &
Company (“JP Morgan”),  Broadspire Services Inc.
(“Broadspire”), and National Union Fire Insurance
Company of Pittsburgh (“National Union”) raising
a negligence claim and Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, claims,
Brodsky v. J.P. Morgan Chase & Company, C.A. No.
17-5529-JS-AYS (E.D.N.Y. Sept. 20, 2017) (“Brodsky
I ”). The Complaint alleged that on June 9, 2017,
at approximately 3:30 p.m., while at the J.P. Morgan Chase
Bank located at 177 Montague Street in Brooklyn, New York,
Plaintiff fell down a flight of stairs and was injured.
See Brodsky I, D.I. 1 at 8. Brodsky I
alleges that JP Morgan was negligent and it failed to fulfill
its obligations under the ADA. Id. at 13.
March 15, 2019, Plaintiff commenced an action in this Court
against JP Morgan, Broadspire, National Union, and Stahl Real
Estate Company (“Stahl”) raising a negligence
claim and ADA claims (“Brodsky II”).
(D.I. 2). The Complaint in Brodsky II goes into
greater detail, but it contains the same basic allegations as
those in Brodsky I – that on June 9, 2017, at
approximately 3:30 p.m., while at the J.P. Morgan Chase Bank
located at 177 Montague Street in Brooklyn, New York,
Plaintiff fell down a flight of stairs and was injured.
(Compare Brodsky II at D.I. 2 with Brodsky
I at D.I. 1). Both Brodsky I and Brodsky
II allege that JP Morgan was negligent and failed to
fulfill its obligations under the ADA. Brodsky II
adds Stahl as a defendant alleging that it is the owner of
the building at issue and that JP Morgan leases the first
floor of the building. (D.I. 2-1 at 9).
November 28, 2017, Plaintiff was granted in forma
pauperis status in Brodsky I. Brodsky
I at D.I. 11. On January 10, 2019, the EDNY Court
revoked its grant of in forma pauperis status and
ordered Plaintiff, within thirty days from the date of the
order, to file a new in forma pauperis application
and certain required documents or, in the alternative, pay
the $400 filing fee in full. Brodsky I at D.I. 38.
Plaintiff belatedly filed an in forma pauperis
application, but did not provide the additional required
documents as ordered by the EDNY Court. Brodsky
I at D.I 40, 41.
31, 2019, the EDNY Court entered a Memorandum and Order that
denied Plaintiff’s second motion for leave to proceed
in forma pauperis. Brodsky I at D.I. 41 at
11. In light of Plaintiff’s numerous contradictions
regarding poverty and Plaintiff’s numerous filings
throughout the United States, the EDNY directed that its
memorandum and order be mailed to several district courts,
including this one. Brodsky I at D.I. 41 at 1-12.
The EDNY Court specifically noted in its Memorandum and Order
that Brodsky II alleged the same facts and claims
against largely the same Defendants as in Brodsky I.
Id. at n.6.
31, 2019 Memorandum and Order advised Plaintiff that if he
wished to pursue the action, he was to remit the $400 filing
fee within thirty days from the date of the order, and it
warned Plaintiff that his failure to timely remit the filing
fee would lead to dismissal of the complaint with prejudice
and judgment would enter. Brodsky I at D.I. 41 at
11. Plaintiff was further advised that if he opted to pay the
filing fee, the EDNY Court “may hold a hearing to
address whether [Plaintiff’s] submissions violate
Federal Rule of Civil Procedure 11(b).” Id.
18, 2019, the EDNY Court entered an order stating that
Plaintiff did not remit the filing fee and had not otherwise
communicated with the Court. Brodsky I at D.I. 42.
The Order dismissed the case with prejudice pursuant to
Fed.R.Civ.P. 41(b). Id. Judgment, entered on July
19, 2019, dismissed the case with prejudice pursuant to Rule
41(b) and closed the case. Id. at D.I. 43.
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) if “the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief.” Ball v. Famiglio,
726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C.
§ 1915(e)(2) (in forma pauperis actions). The
Court must accept all factual allegations in a complaint as
true and take them in the light most favorable to a pro
se plaintiff. See Phillips v. County of
Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);
Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because
Plaintiff proceeds pro se, his pleading is liberally
construed and his Complaint, “however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson, 551
U.S. at 94 (citations omitted).
action is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C.
§ 1915(e)(2)(B)(i), a court may dismiss a complaint as
frivolous if it is “based on an indisputably meritless
legal theory” or a “clearly baseless” or
“fantastic or delusional” factual scenario.
Neitzke, 490 U.S. at 327-28; see also Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch
v. United States, 67 F.3d ...