United States District Court, E.D. Pennsylvania
Picozzi, proceeding pro se, has filed a civil action
against Joseph McKeown, Pat Mason, Kathleen Kacknacker, Ethel
McKeown, and Harry McKucking. He has also filed a Motion for
Leave to Proceed In Forma Pauperis. (ECF No. 2.) For
the reasons set forth below, the Court will grant Picozzi
leave to proceed in forma pauperis and will dismiss
his Complaint with leave to amend.
Complaint, Picozzi alleges that “when [he] was a young
kid Joseph molested [him] for they been harassing [him] when
[his] mom die[d].” (Compl. at 3.) He contends that the
Defendants “made a will behind [his] back” and
blocked his phone number from people. (Id.) Picozzi
“had to go to City Hall and get a will.”
(Id.) He claims that the Defendants “had this
people in the medical field do stuff to [him and he] got
stuff in [his] private part where [he] can't have
sex!” (Id.) Picozzi argues that “Joseph
came to hospital and did stuff this Dr. Snyder no [sic] him
real well and his brother Murphy.” (Id.) He
lost his house up in Langhorne. (Id.) According to
Picozzi, Murphy and his sister “tr[ied] to kill [him]
at a wedding by drugging [him].” (Id.) He
claims that the Defendants' actions “screw[ed him]
up” mentally. (Id. at 4.) As relief, he asks
the Court to “put the guy behind bars.”
STANDARD OF REVIEW
Court will grant Picozzi leave to proceed in forma
pauperis because it appears that he is not capable of
paying the fees necessary to commence this action.
Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) applies to
Picozzi's Complaint. That statute requires the Court to
dismiss the Complaint if it fails to state a claim. Whether a
complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999), which requires the Court to determine
whether the complaint contains “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) (quotations omitted). Conclusory
statements and naked assertions will not suffice.
Id. Moreover, “if the court determines at any
time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed.R.Civ.P. 12(h)(3). As
Picozzi is proceeding pro se, the Court construes
his allegations liberally. Higgs v. Att'y Gen.,
655 F.3d 333, 339 (3d Cir. 2011).
used this Court's form Complaint for non-incarcerated
individuals wishing to file a civil action. He failed,
however, to indicate the basis for the Court's subject
matter jurisdiction over his case. To the extent that Picozzi
is asserting civil rights claims pursuant to 42 U.S.C. §
1983, nothing in the Complaint suggests that the Defendants
are state actors and that they deprived Picozzi “of
rights, privileges, or immunities secured by the Constitution
or laws of the United States.” Parratt v.
Taylor, 451 U.S. 527, 535 (1981); see also West v.
Atkins, 487 U.S. 42, 48 (1988). In any event, if Picozzi
is trying to bring claims seeking the prosecution of the
individual who molested him, his claims are not cognizable.
See Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973) (“[A] private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another.”). While the Court is sympathetic if Picozzi
was indeed the victim of a crime, the Complaint, as pled,
fails to allege a basis for federal question jurisdiction.
extent that Picozzi is asserting tort claims under state law,
the only basis for this Court to exercise jurisdiction over
such claims is pursuant to 28 U.S.C. § 1332(a), which
grants a district court jurisdiction over “all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States.” Here,
Picozzi has failed to set forth an amount in controversy, and
his Complaint fails to establish that the parties are
citizens of different states for purposes of § 1332. An
individual is a citizen of the state where he is domiciled,
meaning the state where he is physically present and intends
to remain. See Washington v. Hovensa LLC, 652 F.3d
340, 344 (3d Cir. 2011). The Complaint suggests that Picozzi
is domiciled in Pennsylvania, but fails to provide any
information regarding the Defendants'
domiciles. Thus, at this point, the Court cannot
discern whether diversity jurisdiction exists.
foregoing reasons, the Court will dismiss Picozzi's
Complaint. Any federal claims brought pursuant to 42 U.S.C.
§ 1983 will be dismissed with prejudice for failure to
state a claim, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). Any state law claims will be dismissed
without prejudice to Picozzi refiling them in state court, or
filing an amended complaint in this action within thirty (30)
days. An appropriate Order follows.
 Despite lacking this information, it
is possible that at least one of the Defendants is domiciled
in Pennsylvania. If so, diversity jurisdiction would not
exist, as “no plaintiff [may] be a citizen of the same
state as any defendant.” Lincoln Ben. Life Co. v.