Louis Gomez v. Usaa Federal Savings Bank and Janette Adger Mills, 171 F.3d 794, 2d Cir. (1999)

171 F.
3d 794
Louis GOMEZ, Plaintiff-Appellant,

v.
USAA FEDERAL SAVINGS BANK and Janette Adger Mills,
Defendants-Appellees.
Docket No. 97-9381
United States Court of Appeals,

Second Circuit.
Argued March 17, 1999.
Decided March 30, 1999.
Jeffrey S. Burman, Esq., (Arthur S. Linker, Esq., on the brief), Rosenman

& Colin LLP, New York, New York, for Plaintiff-Appellant.
Evan K. Kornrich, Esq., Fulbright & Jaworski LLP, New York, New
York, for Defendants-Appellees.
Before: WALKER, CABRANES, Circuit Judges, and TSOUCALAS,
Judge.*
PER CURIAM:
Plaintiff-appellant Louis Gomez appeals from a judgment of the United States

District Court for the Southern District of New York (Thomas P. Griesa, Chief
Judge ), dated September 17, 1997, which dismissed his pro se, in forma
pauperis complaint sua sponte without prejudice pursuant to 28 U.S.C.
1915(e)(2).
Gomez's complaint identified defendant's address as 10750 McDermott

Freeway, San Antonio, TX 78288 and stated in its entirety:
Plaintiff had attempted to open an account at Defendant's institution, the bank.

On April 25, 1996, Defendant violated Plaintiff's Federal Civil Rights by
prompting an investigation by the United States Secret Service ("USSS") for an
alleged criminal act by plaintiff. This criminal act never occurred and was
unfounded by the USSS.

4
By prompting this investigation, Defendant committed acts of liable [sic] and

slander, they not only violated Federal Tort Laws, but caused injury and a great
deal of mental anguish and emotional distress to the Plaintiff. I believe that they
acted with malice and willful intent. Therefore, I want to bring charges against
the Defendant.
Plaintiff is seeking relief in the form of $76,000.
The district court interpreted the complaint as an action under Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971), permitting a suit for deprivation of a constitutional right against a
federal governmental actor, but concluded that the complaint failed to state a
claim because it did not allege facts showing that the defendants acted under
color of federal law to deprive plaintiff of a constitutional right. The district
court further noted that "[a]s for plaintiff's conclusory allegations of libel and
slander under this Court's diversity jurisdiction, ... this United States District
Court is not the appropriate venue for this action." The court refused to transfer
the matter to the appropriate district court "because plaintiff has failed to detail
these allegations sufficiently to suggest a cognizable claim." The district court
then dismissed the complaint "because it 'lacks an arguable basis either in law
or in fact.' " (quoting Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989) (discussing when complaint is frivolous)).
While we believe that the record, insofar as it has been developed, is

insufficient to support the district court's dismissal of the complaint as
"frivolous or malicious" under 1915(e)(2)(B)(i), the complaint nevertheless
"fails to state a claim on which relief may be granted." 28 U.S.C. 1915(e)(2)
(B)(ii). Accordingly dismissal of the case would normally be proper. However,
"[a] pro se complaint is to be read liberally. Certainly the court should not
dismiss without granting leave to amend at least once when a liberal reading of
the complaint gives any indication that a valid claim might be stated." Branum
v. Clark, 927 F.2d 698, 705 (2d Cir.1991). Although the language of 1915 is
mandatory, stating that "the court shall dismiss the case" in the enumerated
circumstances, we conclude that a pro se plaintiff who is proceeding in forma
pauperis should be afforded the same opportunity as a pro se fee-paid plaintiff
to amend his complaint prior to its dismissal for failure to state a claim, unless
the court can rule out any possibility, however unlikely it might be, that an
amended complaint would succeed in stating a claim. Because the district court
did not give this pro se litigant an opportunity to amend his complaint, and
because we cannot rule out the possibility that such an amendment will result
in a claim being successfully pleaded, we vacate the judgment and instruct the
district court to permit the plaintiff to amend the complaint and then determine
whether he has successfully pled a cause of action.
8
A district court may not dismiss a case sua sponte for improper venue absent
extraordinary circumstances. See Concession Consultants, Inc. v. Mirisch, 355
F.2d 369, 371 (2d Cir.1966); see also Stich v. Rehnquist, 982 F.2d 88, 88-89
(2d Cir.1992) (per curiam). This case does not present any such extraordinary
circumstances, and therefore the libel action was wrongly dismissed sua sponte
on the basis of improper venue.
For the reasons stated above, the district court's judgment is vacated and the
case remanded for further proceedings consistent with this opinion.
The Honorable Nicholas Tsoucalas, Senior Judge of the United States Court of
International Trade, sitting by designation

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171 F.

Louis GOMEZ, Plaintiff-Appellant,

United States Court of Appeals,

Jeffrey S. Burman, Esq., (Arthur S. Linker, Esq., on the brief), Rosenman

Plaintiff-appellant Louis Gomez appeals from a judgment of the United States

Gomez's complaint identified defendant's address as 10750 McDermott

Plaintiff had attempted to open an account at Defendant's institution, the bank.

unfounded by the USSS.

By prompting this investigation, Defendant committed acts of liable [sic] and

Plaintiff is seeking relief in the form of $76,000.

While we believe that the record, insofar as it has been developed, is

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