Hilts v. Ellis Hospital
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Opinion
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
JAHEEM R. HILTS,
Plaintiff,
v. 1:24-CV-0614 (AMN/ML)
ELLIS HOSP.; A NURSE, name unknown at the moment at Ellis Hosp.; and SHANTANU BAGHEL, D.O. Doctor Provider at Ellis Hosp.,
Defendants.
APPEARANCES: OF COUNSEL:
Jaheem R. Hilts 845 Broadway, Apt. 324 Schenectady, New York 12305 Plaintiff, pro se
Hon. Anne M. Nardacci, United States District Judge:
ORDER I. INTRODUCTION On May 3, 2024, Plaintiff pro se Jaheem R. Hilts commenced this action using a form complaint that alleges that his civil rights were violated by Defendants Ellis Hospital, a nurse, and Shantanu Baghel (collectively “Defendants”). Dkt. No. 1. Plaintiff did not pay the filing fee and sought leave to proceed in forma pauperis (“IFP”). Dkt. No. 2. This matter was referred to Magistrate Judge Lovric, who, on May 23, 2024, denied Plaintiff’s motion for leave to proceed IFP on the ground that the application was incomplete. Dkt. No. 5. On June 3, 2024, Plaintiff filed a revised IFP application. Dkt. No. 6. On July 25, 2024, Magistrate Judge Lovric issued an Order and Report-Recommendation (i) granting Petitioner’s renewed IFP request; and (ii) recommending that Plaintiff’s Complaint, Dkt. No. 1, be dismissed with leave to amend (“Report-Recommendation”). Dkt. No. 7. Magistrate Judge Lovric advised that under 28 U.S.C. § 636(b)(1), the parties had fourteen days within which to file written objections and that failure to object to the Report-Recommendation
within fourteen days would preclude appellate review. Dkt. No. 7 at 10.1 Plaintiff filed an objection on August 2, 2024. Dkt. No. 8. For the reasons set forth below, the Court rejects Plaintiff’s objection and adopts the Report-Recommendation in its entirety. II. STANDARD OF REVIEW This Court reviews de novo those portions of a magistrate judge’s report-recommendation that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no specific objections have been filed, this Court reviews a magistrate judge’s report-recommendation for clear error. See Petersen, 2 F.
Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). Similarly, if an objection simply rehashes arguments originally presented to the magistrate judge, this Court reviews the relevant portions of the report-recommendation for clear error. See Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). “When performing such a ‘clear error’ review, ‘the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Dezarea W. v. Comm'r of Soc. Sec., No. 6:21-CV-01138 (MAD/TWD), 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm’r of
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic filing system. Soc. Sec., No. 1:17-CV-0367 (GTS/WBC), 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)). “[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a pro se party’s objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate’s proposal . . . .” Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No. 22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION The Court adopts all aspects of the Report-Recommendation, finding no clear error therein. Plaintiff has not raised a specific objection as to the background, the legal framework, or the analysis set forth in the Report-Recommendation, familiarity with which is presumed for purposes of this decision. Plaintiff’s objection does not take issue with the Report- Recommendation’s interpretation of the Complaint’s allegations, including the Report- Recommendation’s assumption that the unnamed hospital detailed in the Complaint is Ellis Hospital. See Dkt. No. 7 at 2 n.2. Nor does Plaintiff’s objection take issue with the Report- Recommendation’s reasoning regarding Plaintiff’s failure to plausibly suggest Defendants are state actors for purposes of sustaining an action under 42 U.S.C. § 1983. See Dkt. No. 7 at 5. Instead, Plaintiff’s sole objection reiterates that Plaintiff “was not in The Mental Health System [sic],” and that he “came from Colorado [sic] forced to take medications.” Dkt. No. 8. These factual allegations were included in the Complaint and were considered by Magistrate Judge Lovric in the drafting of the Report-Recommendation. See Dkt. No. 1 at 2. Even construed
liberally, Plaintiff’s objection merely “rehashes” the arguments and allegations found in the Complaint, and thus, Plaintiff makes no specific objection. See Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). Therefore, finding no specific objection, this Court reviews the Report-Recommendation for clear error. See Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). The Court finds no clear error in Magistrate Judge Lovric’s analysis. In the Report- Recommendation, Magistrate Judge Lovric appropriately applied the legal standard for review of a pro se complaint under 28 U.S.C. § 1915(e)(2)(B). See Dkt. No. 7 at 3, 5 (citing, inter alia,
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) and Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008)). Magistrate Judge Lovric determined that the allegations in Plaintiff’s Complaint do not state a claim under 42 U.S.C. § 1983 because Defendants are private actors whose conduct is “beyond the reach of § 1983.”2 Magistrate Judge Lovric also determined that Plaintiff fails to plead facts capable of suggesting the private Defendants’ actions should be treated as those of the State itself for purposes of maintaining an action under 42 U.S.C. § 1983.3 The
2 See Dkt. No. 7 at 7 (quoting Revill v. Pratz, 24-CV-2782, 2024 WL 1908587, at *4 (E.D.N.Y. May 1, 2024)). 3 See Dkt. No. 7 at 6 (citing Holyoke v. S.S.I., 23-CV-1557, 2024 WL 3063679, at *3 (N.D.N.Y. June 20, 2024), and Elisens v. Auburn Cmty. Hosp., 19-CV-1236, 2021 WL 1027915, at *2 (N.D.N.Y.
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
JAHEEM R. HILTS,
Plaintiff,
v. 1:24-CV-0614 (AMN/ML)
ELLIS HOSP.; A NURSE, name unknown at the moment at Ellis Hosp.; and SHANTANU BAGHEL, D.O. Doctor Provider at Ellis Hosp.,
Defendants.
APPEARANCES: OF COUNSEL:
Jaheem R. Hilts 845 Broadway, Apt. 324 Schenectady, New York 12305 Plaintiff, pro se
Hon. Anne M. Nardacci, United States District Judge:
ORDER I. INTRODUCTION On May 3, 2024, Plaintiff pro se Jaheem R. Hilts commenced this action using a form complaint that alleges that his civil rights were violated by Defendants Ellis Hospital, a nurse, and Shantanu Baghel (collectively “Defendants”). Dkt. No. 1. Plaintiff did not pay the filing fee and sought leave to proceed in forma pauperis (“IFP”). Dkt. No. 2. This matter was referred to Magistrate Judge Lovric, who, on May 23, 2024, denied Plaintiff’s motion for leave to proceed IFP on the ground that the application was incomplete. Dkt. No. 5. On June 3, 2024, Plaintiff filed a revised IFP application. Dkt. No. 6. On July 25, 2024, Magistrate Judge Lovric issued an Order and Report-Recommendation (i) granting Petitioner’s renewed IFP request; and (ii) recommending that Plaintiff’s Complaint, Dkt. No. 1, be dismissed with leave to amend (“Report-Recommendation”). Dkt. No. 7. Magistrate Judge Lovric advised that under 28 U.S.C. § 636(b)(1), the parties had fourteen days within which to file written objections and that failure to object to the Report-Recommendation
within fourteen days would preclude appellate review. Dkt. No. 7 at 10.1 Plaintiff filed an objection on August 2, 2024. Dkt. No. 8. For the reasons set forth below, the Court rejects Plaintiff’s objection and adopts the Report-Recommendation in its entirety. II. STANDARD OF REVIEW This Court reviews de novo those portions of a magistrate judge’s report-recommendation that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no specific objections have been filed, this Court reviews a magistrate judge’s report-recommendation for clear error. See Petersen, 2 F.
Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). Similarly, if an objection simply rehashes arguments originally presented to the magistrate judge, this Court reviews the relevant portions of the report-recommendation for clear error. See Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). “When performing such a ‘clear error’ review, ‘the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Dezarea W. v. Comm'r of Soc. Sec., No. 6:21-CV-01138 (MAD/TWD), 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm’r of
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic filing system. Soc. Sec., No. 1:17-CV-0367 (GTS/WBC), 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)). “[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a pro se party’s objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate’s proposal . . . .” Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No. 22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION The Court adopts all aspects of the Report-Recommendation, finding no clear error therein. Plaintiff has not raised a specific objection as to the background, the legal framework, or the analysis set forth in the Report-Recommendation, familiarity with which is presumed for purposes of this decision. Plaintiff’s objection does not take issue with the Report- Recommendation’s interpretation of the Complaint’s allegations, including the Report- Recommendation’s assumption that the unnamed hospital detailed in the Complaint is Ellis Hospital. See Dkt. No. 7 at 2 n.2. Nor does Plaintiff’s objection take issue with the Report- Recommendation’s reasoning regarding Plaintiff’s failure to plausibly suggest Defendants are state actors for purposes of sustaining an action under 42 U.S.C. § 1983. See Dkt. No. 7 at 5. Instead, Plaintiff’s sole objection reiterates that Plaintiff “was not in The Mental Health System [sic],” and that he “came from Colorado [sic] forced to take medications.” Dkt. No. 8. These factual allegations were included in the Complaint and were considered by Magistrate Judge Lovric in the drafting of the Report-Recommendation. See Dkt. No. 1 at 2. Even construed
liberally, Plaintiff’s objection merely “rehashes” the arguments and allegations found in the Complaint, and thus, Plaintiff makes no specific objection. See Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). Therefore, finding no specific objection, this Court reviews the Report-Recommendation for clear error. See Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). The Court finds no clear error in Magistrate Judge Lovric’s analysis. In the Report- Recommendation, Magistrate Judge Lovric appropriately applied the legal standard for review of a pro se complaint under 28 U.S.C. § 1915(e)(2)(B). See Dkt. No. 7 at 3, 5 (citing, inter alia,
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) and Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008)). Magistrate Judge Lovric determined that the allegations in Plaintiff’s Complaint do not state a claim under 42 U.S.C. § 1983 because Defendants are private actors whose conduct is “beyond the reach of § 1983.”2 Magistrate Judge Lovric also determined that Plaintiff fails to plead facts capable of suggesting the private Defendants’ actions should be treated as those of the State itself for purposes of maintaining an action under 42 U.S.C. § 1983.3 The
2 See Dkt. No. 7 at 7 (quoting Revill v. Pratz, 24-CV-2782, 2024 WL 1908587, at *4 (E.D.N.Y. May 1, 2024)). 3 See Dkt. No. 7 at 6 (citing Holyoke v. S.S.I., 23-CV-1557, 2024 WL 3063679, at *3 (N.D.N.Y. June 20, 2024), and Elisens v. Auburn Cmty. Hosp., 19-CV-1236, 2021 WL 1027915, at *2 (N.D.N.Y. Mar. 17, 2021)). Court agrees with this assessment of Plaintiff’s Complaint under 42 U.S.C. § 1983. Magistrate Judge Lovric expressed “serious doubts” that Plaintiff could amend the Complaint to assert actionable claims. Dkt. No. 7 at 8. Nevertheless, in deference to Plaintiff’s pro se status, he recommended that Plaintiff’s Complaint be dismissed with leave to amend. Id. The Court agrees that Plaintiff should be granted an opportunity to amend the complaint. See
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim.”) (citation omitted); Bruce v. Tompkins Cty. Dep’t of Soc. Servs. ex rel. Kephart, No. 5:14-CV-0941 (GTS/DEP), 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (“a court should not dismiss a complaint filed by a pro se litigant 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’”) (quoting Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the Report-Recommendation in its entirety.4
IV. CONCLUSION Accordingly, the Court hereby ORDERS that the Report-Recommendation, Dkt. No. 7, is ADOPTED in its entirety; and the Court further ORDERS that the Complaint, Dkt. No. 1, is DISMISSED without prejudice and with leave to amend; and the Court further
4 The Court reiterates Magistrate Judge Lovric’s admonition to Plaintiff that an amended complaint or submission to this Court must set forth specific allegations of fact indicating a deprivation of rights. See Dkt. No. 7 at 8. ORDERS that Plaintiff shall file an amended complaint within THIRTY (30) DAYS of the filing date of this Order; and the Court further ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of this Order, the Clerk of the Court shall enter judgment in Defendants’ favor and close this case without further order of this Court; and the Court further ORDERS that the Clerk serve a copy of this Order on Plaintiff in accordance with the Local Rules.° IT IS SO ORDERED. Dated: August 14, 2024 Oued V). Jar Albany, New York Anne M. Nardacci U.S. District Judge
> The Clerk shall also provide Plaintiff with copies of all unreported decisions herein.
2023 WL 2552452 Recommendation. When a party declines to file an objection, Only the Westlaw citation is currently available. the court reviews a recommendation for clear error. See United States District Court, N.D. New York. McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). After the appropriate review, “the court may accept, DEZAREA W., Plaintiff, reject or modify, in whole or in part, the findings or v. recommendations made by the magistrate [judge].” 28 U.S.C. COMMISSIONER OF SOCIAL SECURITY, Defendant. § 636(b)(1). “When performing such a ‘clear error’ review, ‘the court need only satisfy itself that there is no clear error on 6:21-CV-01138 (MAD/TWD) the face of the record in order to accept the recommendation.’ | ” Canady v. Comm'r of Soc. Sec., No. 1:17-CV-0367, 2017 Signed March 17, 2023 WL 5484663, *1 n.1 (N.D.N.Y. Nov. 14, 2017) (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; Attorneys and Law Firms Batista v. Walker, No. 94-CV-2826, 1995 WL 453299, *1 (S.D.N.Y. July 31, 1995)). DEZAREA W., P.O. Box 597, Oriskany, New York 13424, Plaintiff, pro se. Having reviewed the Report-Recommendation, the Court JASON P. PECK, ESQ., SOCIAL SECURITY concludes that Magistrate Judge Dancks correctly determined ADMINISTRATION, 6401 Security Boulevard, Baltimore, that the Court should reverse the Commissioner's decision and Maryland 21235, Attorneys for Defendant. remand for further proceedings. Here, the ALJ impermissibly “cherry-picked” the records from Dr. Dhiman and other medical evidence, see Dkt. No. 10 at 25-28, “without providing relevant context and ignored many entries to the ORDER contrary in the RFC determination.” See Dkt. No. 19 at 15. Mae A. D'Agostino, United States District Judge: The ALJ did not provide a “ ‘logical bridge’ ” between the evidence and her conclusions as to Plaintiff's RFC. *1 On February 13, 2019, Plaintiff Dezarea W. (“Plaintiff”) See Gutowski v. Comm'r of Soc. Sec., No. 17-CV-1246, filed for Disability Insurance Benefits. See Dkt. No. 10 at 275, 2019 WL 2266796, *4 (W.D.N.Y. May 28, 2019) (quotation 188, 19. Plaintiff's claim was denied by the agency on May omitted). As Magistrate Judge Dancks noted, “[w]here [the 23, 2019, and again upon reconsideration on August 19, 2019. court is] ‘unable to fathom the ALJ's rationale in relation See id. at 6, 144. Following hearings, on January 22, 2021, to the evidence in the record, especially where credibility Administrative Law Judge (“ALJ”) Robyn L. Hoffman issued determinations and inference drawing is required of the an unfavorable decision. See id. at 16-18. Plaintiff appealed, ALJ,’ [the court] will not ‘hesitate to remand for further and on August 16, 2021, the Appeals Council denied review. findings or a clearer explanation for the decision.’ ” Cichocki See id. at 6-9. v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (internal citations omitted). Therefore, remand is warranted for the ALJ to On October 20, 2021, Plaintiff commenced this action articulate how she relied on or rejected evidence, and how pursuant to 42 U.S.C. § 405(g) to review the Commissioner's she reached Plaintiff's RFC determination. See Estrella v. unfavorable decision. See Dkt. No. 1. Plaintiff submitted Berryhill, 925 F.3d 90, 96-97 (2d Cir. 2019) (ordering remand a brief arguing that the ALJ incorrectly addressed medical “[w]hen viewed alongside the evidence of the ... nature of opinions and inconsistencies in the record. See Dkt. No. [Plaintiff's disability], the ALJ's two cherry-picked treatment 15 at 1-2.1 Defendant opposed the motion, arguing that notes do not provide ‘good reasons’ for minimalizing [the Plaintiff's allegations regarding her pain are not supported by treating physician's] opinion”). the record. See Dkt. No. 16 at 3-12. On February 13, 2023, Magistrate Judge Dancks issued a Report-Recommendation, recommending reversal of the Commissioner's decision and IV. CONCLUSION remand for further proceedings. See Dkt. No. 19 at 23-24. the entire record in this matter, and the applicable law, the ORDERS that the Clerk of the Court shall enter judgment in Court hereby Plaintiff's favor and close this case; and the Court further ORDERS that Magistrate Judge Dancks’ Report- ORDERS that the Clerk of the Court shall serve a copy of Recommendation (Dkt. No. 19) is ADOPTED in its entirety this Order on the parties in accordance with the Local Rules. for the reasons set forth herein; and the Court further IT IS SO ORDERED. ORDERS that the Commissioner's decision is REVERSED, and this case is REMANDED, pursuant to sentence four All Citations of 42 U.S.C. § 405(g), for further proceedings consistent with this Order and Magistrate Judge Dancks’ Report- Not Reported in Fed. Supp., 2023 WL 2552452 Recommendation; and the Court further Footnotes 1 Specifically, Plaintiff submitted a brief recounting that the Social Security Administration's medical expert Dr. Dhiman determined other physicians’ opinions, including Dr. Finocchiaro's, the treating physician, to be correct. However, Plaintiff argues it was an error when Dr. Dhiman then contradicted these medical opinions in determining how long Plaintiff can sit, stand, and walk. See Dkt. No. 15 at 1-2; Dkt. No. 10 at 79. Magistrate Judge Therese Wiley Dancks construed the brief as arguing that the ALJ's Residual Functional Capacity (“RFC”) determination was not supported by substantial evidence. See Dkt. No. 19 at 9. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2017 WL 5484663 that the Commissioner’s decision denying Plaintiff Social Only the Westlaw citation is currently available. Security benefits be affirmed, and that Plaintiff’s Complaint United States District Court, N.D. New York. be dismissed. (Dkt. No. 15.) Objections to the Report- Recommendation have not been filed and the time in which Angela J. CANADY, Plaintiff, to do so has expired. (See generally Docket Sheet.) v. COMMISSIONER OF SOCIAL SECURITY, Defendant. After carefully reviewing all of the papers herein, including Magistrate Judge Carter’s thorough Report- 1:17-CV-0367 (GTS/WBC) Recommendation, the Court can find no clear error in | the Report-Recommendation.1 Magistrate Judge Carter Signed 11/14/2017 employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. Attorneys and Law Firms No. 15.) As a result, the Commissioner’s decision denying OFFICE OF STEPHEN J. MASTAITIS, JR., Counsel for Plaintiff Social Security benefits is affirmed, and Plaintiff’s Plaintiff, OF COUNSEL: STEPHEN J. MASTAITIS, ESQ., Complaint is dismissed. 1412 Route 9P, Saratoga Springs, New York 12866 ACCORDINGLY, it is SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL–REGION II, Counsel for Defendant, ORDERED that Magistrate Judge Carter’s Report- OF COUNSEL:SUSAN J. REISS, ESQ., Special Assistant Recommendation (Dkt. No. 15) is ACCEPTED and U.S. Attorney, 26 Federal Plaza, Room 3904, New York, New ADOPTED in its entirety; and it is further York 10278 ORDERED that the Commissioner’s decision denying Plaintiff Social Security benefits is AFFIRMED, and that DECISION and ORDER Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED. HON. GLENN T. SUDDABY, Chief United States District Judge All Citations *1 The above matter comes to this Court following a Report- Not Reported in Fed. Supp., 2017 WL 5484663 Recommendation by United States Magistrate Judge William Footnotes 1 When no objection is made to a report-recommendation, the Court subjects the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks and citations omitted). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2011 WL 3809920 1712, 90 L.Ed.2d 69 (1986), and preemptory challenges Only the Westlaw citation is currently available. guaranteed by New York state law can not be challenged United States District Court, by federal habeas corpus review; and (3) in-court statements S.D. New York. challenged by Petitioner were not hearsay because they were admitted to establish the witnesses state of mind, and Shawn MACHICOTE, Petitioner, review of the Petitioner's Confrontation Clause claim is v. barred because of procedural default during the state court Robert E. ERCOLE, Superintendent, Respondent. proceedings. Petitioner filed untimely objections to Judge Francis' Report, which the Court will nevertheless consider. No. 06 Civ. 13320(DAB)(JCF). | For the reasons set forth below, Judge Francis' Report is Aug. 25, 2011. adopted in its entirety, and Petitioner's Petition for the writ of habeas corpus is HEREBY DENIED. ADOPTION OF REPORT AND RECOMMENDATION DEBORAH A. BATTS, District Judge. II. DISCUSSION1 A. Objections to the Report and Recommendation I. BACKGROUND “Within fourteen days after being served with a copy [of a Magistrate Judge's Report and Recommendation], a *1 Now before the Court is pro se Petitioner Shawn party may serve and file specific written objections to the Machicote's November 20, 2006 Petition for writ of habeas proposed findings and recommendations.” Fed.R.Civ.P. 72(b) corpus pursuant to 28 U.S.C. § 2254 (the “Petition”), (2); accord 28 U.S.C. s 636(b)(1)(C). The court may adopt challenging his conviction in New York State Supreme Court, those portions of the Report to which no timely objection has New York County, for murder in the second degree. Petitioner been made, as long as there is no clear error on the face of the alleges that: (1) his right to due process was violated by the record. Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, admission into evidence of statements he made to detectives 169 (S.D.N.Y.2003). A district court must review de novo while incarcerated in North Carolina on unrelated charges; “those portions of the report or specified proposed findings (2) his rights to a fair trial, due process, and equal protection or recommendations to which objection is made.” 28 U.S.C. were violated when the trial court overruled defense counsel's § 636(b)(1)(C). preemptory challenges against prospective jurors; and (3) his Sixth Amendment right to confront witnesses against him *2 “To the extent, however, that the party makes only was violated by the introduction at trial of hearsay statements conclusory or general arguments, or simply reiterates the from a witness. (Report at 1.) On December 8, 2006, the original arguments, the Court will review the Report strictly Petition was referred to United States Magistrate Judge James for clear error.” Indymac Bank, F.S.B. v. Nat'l Settlement C. Francis IV for a report and recommendation. Agency, Inc., 2008 WL 4810043, at *1 (S.D.N.Y. Nov.3, 2008); see also Ortiz v. Barkley, 558 F.Supp.2d 444, 451 Judge Francis' January 18, 2008, Report and (S.D.N.Y.2008) (“Reviewing courts should review a report Recommendation (the “Report”) recommends that and recommendation for clear error where objections are Petitioner's habeas corpus Petition be denied. (Report at 1.) merely perfunctory responses, argued in an attempt to engage Specifically, Judge Francis recommends that the Petition the district court in a rehashing of the same arguments set be denied because: (1) statements Petitioner made while forth in the original Petition.”) (citation and internal quotation incarcerated in North Carolina were not made under coercion marks omitted). After conducting the appropriate levels of beyond the mere fact of imprisonment, and the state court's review, the Court may accept, reject, or modify, in whole or in decision to admit those statements was not contrary to, part, the findings or recommendations made by the Magistrate and did not involve the unreasonable application of, clearly Judge. 28 U.S.C. § 636(b)(1)(C). established federal law; (2) proper procedure was employed by the state court in overruling defense counsel's preemptory leniency and should be construed to raise the strongest law,” limits the law governing a habeas Petitioner's claims arguments that they suggest.” Howell v. Port Chester Police “to the holdings, as opposed to the dicta, of [the Supreme] Station, 2010 WL 930981, at *1 (S.D.N.Y. Mar.15, 2010) Court's decisions as of the time of the relevant state-court (citation omitted). “Nonetheless, even a pro se party's decision.” Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, objections to a Report and Recommendation must be specific 166 L.Ed.2d 482 (2006) (quoting Williams, 529 U.S. at 365); and clearly aimed at particular findings in the magistrate's accord Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006). proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.” Id. *3 “The ‘unreasonable application’ standard is independent (quoting Pinkney v. Progressive Home Health Servs., 2008 of the ‘contrary to’ standard ... [and] means more than WL 2811816 (S.D.N.Y. July 21, 2008) (internal quotations simply an ‘erroneous' or ‘incorrect’ application” of federal marks omitted)). law.” Henry v. Poole, 409 F.3d 48, 68 (2d Cir.2005) (citing Williams, 529 U .S. at 410). A state court decision is based on On April 29, 2008, Petitioner filed untimely objections2 an “unreasonable application” of Supreme Court precedent if to Judge Francis' Report (the “Objections”). Reading it correctly identifies the governing legal rule, but applies it Petitioner's letter in the most lenient manner possible. in an unreasonable manner to the facts of a particular case. Petitioner objects to Judge Francis' rejection of Petitioner's See Williams, 529 U.S. at 413. The inquiry for a federal Confrontation Clause claim on the grounds that ineffective habeas court is not whether the state court's application of the assistance of counsel cures the procedural default in that governing law was erroneous or incorrect, but, rather, whether claim. it was “objectively unreasonable.” Id. at 408–10; see also Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001) (“[A] federal Petitioner did not object to Judge Francis' Report on Miranda habeas court is not empowered to grant the writ just because, and Batson claims and, accordingly, the Court will review in its independent judgment, it would have decided the federal these issues only for clear error. Indymac Bank, F.S.B., 2008 law question differently. The state court's application must WL 4810043, at *1. Because Petitioner objected to Judge reflect some additional increment of incorrectness such that it Francis' recommendation on the Confrontation Clause claim, may be said to be unreasonable.”). the Court will review that claim de novo. 28 U.S.C. § 636(b) (1)(C). Moreover, under the AEDPA, “a determination of a factual issue made by a State court shall be presumed to be correct. The [Petitioner] shall have the burden of rebutting B. Legal Standard the presumption of correctness by clear and convincing Under the Anti–Terrorism and Effective Death Penalty Act evidence.” 28 U.S.C. § 2254(e) (1); see also Parsad v. (“AEDPA”), a federal court may grant habeas relief to a state Greiner, 37 F.3d 175, 181 (2d Cir.2003) (“This presumption of prisoner only if a state court conviction “resulted in a decision correctness is particularly important when reviewing the trial that was contrary to, or involved an unreasonable application court's assessment of witness credibility.”). A state court's of, clearly established Federal law, as determined by the findings “will not be overturned on factual grounds unless Supreme Court of the United States,” 28 U.S.C. § 2254(d) objectively unreasonable in light of the evidence presented in (1), or if it “was based on an unreasonable determination of the state-court proceeding.” Miller–El v. Cockrell, 537 U.S. the facts in light of the evidence presented in the State court 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). proceeding.” Id. § 2254(d)(2). A state court decision is “contrary to” clearly established C. Miranda Claim federal law “if the state court arrives at a conclusion opposite Judge Francis found that statements Petitioner made while to that reached by [the Supreme Court] on a question of law or incarcerated in North Carolina were not made under coercion if the state court decides a case differently than [the Supreme beyond the mere fact of imprisonment, and the state court's Court] has on a set of materially indistinguishable facts.” decision to admit those statements was not contrary to, Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, and did not involve the unreasonable application of, clearly 146 L.Ed.2d 389 (2000); accord Hoi Man Yung v. Walker, 468 established federal law. After reviewing Judge Francis' F.3d 169, 176 (2d Cir.2006); Ernst J. v. Stone, 452 F.3d 186, findings for clear error on the face of the record, the Court DENIED. Ms. Arthur's testimony failed to reference any constitutional grounds for the objection. People v. Machicote, 23 A.D.3d at 265, 804 N.Y.S.2d at 78 (“To the extent that defendant is D. Batson Ruling and Peremptory Challenges Claim raising a constitutional claim, such claim is unpreserved and Judge Francis found that proper procedure was employed by we decline to review it in the interest of justice.”). the state court in overruling defense counsel's preemptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. Under New York's contemporaneous objection rule, an issue 1712, 90 L.Ed.2d 69 (1986), and that peremptory challenges is properly preserved for appellate review only if the party are guaranteed by New York state law, not federal law, and raised an objection at trial. N.Y. C.P.L. § 470.05(2). Even thus cannot be challenged under federal habeas corpus review. if there is an objection to the admission of testimony at After reviewing Judge Francis' findings for clear error on trial, to preserve a constitutional claim grounded on the the face of the record, the Court ADOPTS Judge Francis' Confrontation Clause, New York law demands that counsel recommendation that the Petitioner's Petition for the writ of specify the constitutional dimension of the objection. E.g., habeas corpus on this claim be DENIED. People v. Quails, 55 N.Y.2d 733, 734, 431 N.E.2d 634, 635, 447 N.Y.S.2d 149, 150 (1981). “If a state appellate court refuses to review the merits of a criminal defendant's claim of E. Confrontation Clause Claim constitutional error because of his failure to comply with ... a 1. Procedural Default * contemporaneous objection' rule, a federal court generally *4 Judge Francis recommends that Petitioner's may not consider the merits of the constitutional claim on Confrontation Clause claim be barred because of procedural habeas corpus review.” Peterson v. Scully, 896 F.2d 661, 663 default during the state court proceedings, and even if (2d Cir.1990); see also Wainwright v. Sykes, 433 U.S. 72, 82– Petitioner's Confrontation Clause claim was not barred, it 86, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Garcia v. Lewis, would fail on the merits. 188 F.3d 71, 78–79 (2d Cir.1999). Petitioner contends that the admission of Stephanie Arthur's Here, Petitioner's trial counsel objected to Ms. Arthur's testimony regarding out of court statements identifying testimony at trial, but counsel made no mention of Petitioner's Petitioner as the shooter violated his Sixth Amendment right right to confront witnesses, or any constitutional grounds for to confront witnesses against him.3 The Respondent argues his objection. Counsel's primary reason for objecting was only that Ms. Arthur could not independently identify Petitioner as that this claim is procedurally defaulted because the Petitioner the shooter and that her entire testimony should be stricken on did not clearly raise it as an objection, on constitutional that basis. (Tr. at 431–36). Therefore, the Appellate Division's grounds, during trial. holding that any constitutional claim was not preserved for review is not contrary to, or an unreasonable application of, A procedural default generally bars a federal court from clearly established federal law. reviewing the merits of a habeas claim. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Federal *5 A federal habeas court may not review a prisoner's habeas review is prohibited if a state court rests its judgment claim if that claim was procedurally defaulted in state court on a state law ground that is “independent of the federal “unless the prisoner can demonstrate cause for the default and question and adequate to support the judgment.” Cotto v. actual prejudice as a result of the alleged violation of federal Hebert, 331 F.3d 217, 238 (2d Cir.2003) (quoting Coleman law.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 2546, 115 L.Ed.2d 640 (1991). Excuse of procedural default L.Ed.2d 640 (1991)). A state procedural bar qualifies as an requires a showing that some external impediment actually “ ‘independent and adequate’ state law ground where ‘the prevented counsel from raising the claim. McCleskey v. Zant, last state court rendering a judgment in the case clearly and 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); expressly states that its judgment rests on a state procedural Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 bar.’ “ Levine v. Commissioner of Correctional Services, 44 L.Ed.2d 397 (1986). A petitioner suffers actual prejudice if F.3d 121, 126 (2d Cir.1995) (quoting Harris v. Reed, 489 the outcome of the case would likely have been different had U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)). the alleged constitutional violation not occurred. See Reed v. Trottie v. Mantello, No. 98 Civ. 5581, 1999 WL 187202, at *4 a motion to vacate judgment that Petitioner filed in state (S.D.N.Y. April 6, 1999). court, alleging ineffective assistance of counsel. Ineffective assistance of counsel can excuse procedural default at the state If the petitioner is unable to meet the cause and prejudice level, but the ineffective assistance of counsel claim must first standard, his claim may still be heard if he can show that be presented in state court. See Edwards v. Carpenter, 529 failure to consider the claim would result in a fundamental U.S. 446, 451–454, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); miscarriage of justice. Coleman, 501 U.S. at 750. However, DiSimone v. Phillips, 461 F.3d 181, 191 (2nd Cir.2006). At only in an “extraordinary case, where a constitutional the time of his Report, Judge Francis noted that Petitioner's violation has probably resulted in the conviction of one who ineffective assistance of counsel claim was procedurally is actually innocent,” will “a federal habeas court grant the barred because Petitioner did not raise it during the state writ even in the absence of a showing of cause for the court proceedings. (Report at 37.) In an effort to cure that procedural default.” Murray, 477 U.S. at 496; accord Spence default, Petitioner filed a motion in state court to vacate his v. Superintendent, Great Meadow Correctional Facility, 219 judgment on the grounds of ineffective assistance of counsel. F.3d 162, 170 (2d Cir.2000). While Petitioner's state court motion to vacate may have cured the procedural default in his ineffective assistance of counsel Here, Petitioner has not shown that either the “cause and claim4, Petitioner raises this argument for the first time in prejudice” or “fundamental miscarriage of justice” exceptions his Objections, despite the fact that in earlier filings Petitioner apply. Petitioner cannot meet the cause and prejudice standard specifically denied any claim for ineffective assistance of because Petitioner has proffered no compelling explanation counsel. (Opp'n to Respondent's Mem. Law at 2.) for counsel's failure to make a constitutional objection to Ms. Arthur's testimony during trial. Nor is this an “extraordinary The Court of Appeals for the Second Circuit has not decided case” that has clearly “resulted in the conviction of one who whether a district court must consider a new legal argument is actually innocent.” Murray, 477 U.S. at 496. Consequently, raised for the first time in objections to a magistrate judge's Petitioner's Confrontation Clause claim is barred Report and Recommendation. One U.S. District Court in Vermont, Wells Fargo Bank N.A. v. Sinnott, 2010 WL 297830, at *2 (D.Vermont), adopts the 11th Circuit's approach to new 2. Petitioner's Hearsay Claim Fails on the Merits legal arguments, as described in Williams v. McNeil, 557 F.3d Even if the Petitioner's hearsay objection was sufficient to 1287, 1291 (11th Cir.2009) (holding that in order to preserve raise a Confrontation Clause claim, the claim would also the efficiencies afforded by the Magistrates Act, a district fail on the merits. “It has long been the rule that ‘[s]o long court has discretion to decline to consider a party's argument as ... statements are not presented for the truth of the matter when that argument was not first presented to the magistrate asserted, but only to establish a context ... the defendant's Sixth Amendment rights are not transgressed.’ “ United States judge.).5 v. Paulino, 445 F.3d 211, 216 (2d Cir.2006) (quoting United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990)); see also Applying this standard here, the Court finds that it does Rolland v. Greiner, No. 02 Civ. 8403, 2006 WL 779501, not need to address Petitioner's new legal argument because: at *3 (S.D.N.Y. March 27, 2006) (no Confrontation Clause (1) Petitioner did not make an ineffective assistance of violation when court admitted testimony of police detectives counsel argument before Judge Francis when he had the about a non-testifying co-defendant's statements inculpating opportunity to do so; (2) the record indicates that Petitioner Petitioner for the purpose of explaining what led detectives was satisfied with counsel; (3) Petitioner only attempted to to interview defendant five years after crime). Since Ms. bring an ineffective assistance of counsel claim after it was Arthur's statements were admitted only to show her state of suggested in Judge Francis' Report as a possible cure to cure mind and to establish a context for her identification of the his Confrontation Clause claim's procedural default; (4) the Petitioner, there was no violation of the Petitioner's Sixth Court is unaware of any intervening case or statute that has Amendment rights. changed the state of the law regarding procedural default or ineffective assistance of counsel claims; (5) the resolution of the new legal issue raised here is not open to a serious F. Newly Presented Ineffective Assistance of Counsel Claim question of law; and (6) efficiency and fairness lean strongly the Magistrates Act and would unfairly benefit Petitioner who merits because the challenged statements by Ms. Arthur were changed his tactics after issuance of the magistrate judge's not hearsay. See supra. Report and Recommendation. See Paterson–Leitch Co. v. Thus, the Court declines to consider Petitioner's ineffective Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st assistance of counsel claim raised for the first time in Cir.1988) (“an unsuccessful party is not entitled as of right to Petitioner's Objections to Judge Francis' Report. de novo review by the judge of an argument never seasonably raised before the magistrate.”) *7 Finally, no manifest injustice will result by the Court III. Conclusion declining to consider Petitioner's new argument. To prevail on an ineffective assistance of trial counsel claim, Petitioner Having reviewed the January 18, 2008, Report and must show: (1) that counsel's performance was deficient; and Recommendation of Magistrate Judge James C. Francis IV (2) actual prejudice to the defense. Strickland v. Washington, for clear error on the first two claims, and de novo on the 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). third claim, the Court HEREBY APPROVES, ADOPTS, and Petitioner would need to show that trial counsel's conduct fell RATIFIES the Report in its entirety, and Petitioner's Petition “outside the range of professionally competent assistance” for the writ of habeas corpus is DENIED. The Clerk of the and that “there is a reasonable probability that, but for Court is directed to close the docket in this case. counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Petitioner's state SO ORDERED. court motion to vacate judgment for ineffective assistance of counsel was denied, and it would be denied here as well. The All Citations record shows zealous representation of Petitioner by counsel at trial, and there is no indication that counsel's failure to Not Reported in F.Supp.2d, 2011 WL 3809920 object to Ms. Arthur's testimony on constitutional grounds Footnotes 1 The Factual Background is set forth in detail in Judge Francis' Report and will not be reiterated here. (Report at 2–15.) 2 After being granted several extensions, Petitioner filed his Objections one day late, on April 29, 2008. Attached to his Objections was a copy of Petitioner's motion to vacate judgment pursuant to New York State C.P.L. § 440.1 that Petitioner filed in New York State Supreme Court. Petitioner requested a delay in ruling on the Report so that the state court could rule on his motion to vacate. On December 8, 2009, Petititioner wrote the Court asking of the status of his habeas petition. On January 16, 2009, the Supreme Court of the State of New York, New York County, denied Petitioner's motion under § 440.1 and there is no record of Petitioner appealing this decision. 3 Ms. Arthur was one of two witnesses that witnessed the shooting, but did not inform the authorities of what she saw until several months later. During trial, Ms. Arthur testified that she “didn't see him [Mr. Machicote] shoot the guy, but after a while, after I heard that it was the guy Shawn in the rap video, I put two and two together.” (Tr.(2) at 431.) Defense counsel objected to the testimony of Ms. Arthur because she was “not testifying from her recollection,” but instead from what she had heard from others. (Tr.(2) at 431–32.) The court refused to strike Ms. Arthur's testimony on this point, but instructed the jury that what Ms. Arthur heard Petitioner's counsel moved for a mistrial, but the trial judge denied the motion. (Tr.(2) at 437.) 4 On June 30, 2008, Petitioner's state court motion to vacate judgment for ineffective assistance of counsel was denied because “defense counsel's representation, in the Court's view, was of a far higher level of effectiveness and competence than the minimal constitutional standard.” People v. Machicote, No. 11169– 94, denial of motion to vacate at 8 (N.Y.Sup.Ct.N.Y.Cnty.Crim.Term, Jan. 16, 2009). This Court can find no record of an appeal of the decision denying Petitioners motion to vacate. 5 The District Court of Vermont laid out a six factor test for determining if any new arguments should be allowed. Wells Fargo, 2010 WL 297830, at *3: “(1) the reason for the litigant's previous failure to raise the new legal argument; (2) whether an intervening case or statute has changed the state of the law; (3) whether the new issue is a pure issue of law for which no additional fact-finding is required; (4) whether the resolution of the new legal issue is not open to serious question; (5) whether efficiency and fairness militate in favor or against consideration of the new argument; and (6) whether manifest injustice will result if the new argument is not considered.” End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2022 WL 16918287 this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F. Only the Westlaw citation is currently available. Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks United States District Court, N.D. New York. omitted). Properly raised objections must be “specific and clearly aimed at particular findings” in the report. Molefe Boisey CALDWELL, Plaintiff, v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 v. (S.D.N.Y. 2009). “[E]ven a pro se party's objections to a Gerald J. PETROS, et al., Defendants. Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal....” 1:22-cv-567 (BKS/CFH) Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920 | at *2, 2011 U.S. Dist. LEXIS 95351 (S.D.N.Y. Aug. 25, Signed November 14, 2022 2011) (citation omitted). Findings and recommendations as to which there was no properly preserved objection are reviewed Attorneys and Law Firms for clear error. Id. To the extent a party makes “merely perfunctory responses, argued in an attempt to engage the Plaintiff pro se: Boisey Caldwell, Bronx, NY 10452-7116. district court in a rehashing of the same arguments” in the original submission, the Court will only review for clear error. Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008). MEMORANDUM-DECISION AND ORDER Brenda K. Sannes, Chief United States District Judge: III. DISCUSSION Magistrate Judge Hummel recommended that Plaintiff's I. INTRODUCTION Complaint be dismissed with prejudice because “[i]t is clear *1 Plaintiff pro se Boisey Caldwell brought this “Attorney from review of plaintiff's complaints in this action, that Malpractice” action against Defendants Gerald J. Petros, plaintiff is yet again attempting to bring a case involving the Chritine K. Bush, and James Barrier on May 27, 2022. same defendant and same frivolous claims.” (Dkt. No. 7, at (Dkt. No. 1). The Complaint was referred to United States 6–7 (citing 2019 Action and 2004 Action)). Magistrate Judge Magistrate Judge Christian F. Hummel who, on October 28, Hummel explained that Plaintiff's 2019 Action and 2004 2022, issued a Report-Recommendation and Order granting Action both named Defendant Barrier, raised the same legal Plaintiff's application for leave to proceed in forma pauperis malpractice issues Plaintiff asserts in the present Complaint, and recommending that the Complaint be dismissed with and were dismissed with prejudice. (Dkt. No. 7, at 6–7 (citing prejudice. (Dkt. No. 7, at 1, 6–7 (noting that this is the third 2019 Action, Dkt. No. 4, at 6 (“[P]laintiff may not attempt case Plaintiff has filed against Defendant Barrier alleging to bring a new action to raise these claims against the same “the same frivolous claims” (citing Caldwell v. Barrier, No. defendant.”))). 1:19-cv-1516 (BKS/CFH) (N.D.N.Y. 2019) (“2019 Action”); Caldwell v. James J. Barrier, et al., No. 1:04-cv-0036 (DNH/ *2 Magistrate Judge Hummel also concluded that even if RFT) (N.D.N.Y. 2004) (“2004 Action”))). Plaintiff's claims had not been dismissed previously, they failed to allege a plausible claim for relief. (Dkt. No. Plaintiff has filed a response to the Report-Recommendation. 7, at 7–8). Specifically, Magistrate Judge Hummel found (Dkt. No. 8). For the reasons set forth below, Report- that: Plaintiff's allegations regarding Defendant Barrier's Recommendation is adopted in its entirety. alleged violation of Plaintiff's Fifth, Seventh, and Fourteenth Amendment rights failed to state a claim under 42 U.S.C. § II. STANDARD OF REVIEW 1983 because “Barrier, as an attorney, was not acting under This Court reviews de novo those portions of the Magistrate the color of state law,” (Dkt. No. 7, at 7 (citing Dkt. No. 1, at Judge's findings and recommendations that have been 2–3)); Plaintiff's allegations that Defendant Barrier violated properly preserved with a specific objection. Petersen v. attorney rules of professional conduct “do not form a basis Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. of a constitutional claim,” (id. at 8); the statute of limitations § 636(b)(1)(C). “A proper objection is one that identifies precluded any state law legal malpractice claims “given that the specific portions of the [report-recommendation] that the legal representation occurred in the mid-1990s,” (id. at and Plaintiff does not refer to Defendants Petros or Bush or her designee. (Dkt. No. 7, at 9). outside the caption of the Complaint and has not articulated a plausible basis for liability against them, (Dkt. No. 7, at 7–8). IV. CONCLUSION For these reasons, it is hereby In his response to the Report-Recommendation, (Dkt. No. 8 (docketed as an “Objection”)), Plaintiff provides additional ORDERED that Magistrate Judge Hummel's Report- details about the facts underlying the lawsuit in which Recommendation (Dkt. No. 7) is ADOPTED in all respects; Defendant Barrier was involved, (see, e.g., id. at 5 (referring and it is further to Caldwell v. Tschantre et al.)), and Defendant Barrier's alleged misconduct, (see id. at 7 (“Barrier violated the law ORDERED that Plaintiff's Complaint (Dkt. No. 1) is governing lawyers when he took the case without following DISMISSED in its entirety WITH PREJUDICE; and it is the Rules of Federal Procedure.”)). Plaintiff's submission further does not reference the Report-Recommendation or identify any objection to the analysis in the Report-Recommendation. ORDERED that any appeal from this matter would not be Plaintiff has thus failed to preserve an objection, and the taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and Court's review is for clear error. Having reviewed the Report- it is further Recommendation for clear error and found none, the Court adopts the Report-Recommendation in its entirety. ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the Local Rules. In adopting the Report-Recommendation, the Court also adopts Magistrate Judge Hummel's admonition: any attempt IT IS SO ORDERED. “to bring future actions before this Court involving the same claims and defendant or other frivolous arguments” may result in the issuance of an order to show cause why a pre- All Citations filing order enjoining Plaintiff from filing pro se any future pleadings, documents, or motions in the Northern District of Not Reported in Fed. Supp., 2022 WL 16918287 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2024 WL 1908587 The plaintiff went to the hospital,2 where “Pratz started Only the Westlaw citation is currently available. screaming ‘DO YOU THINK YOU'RE SAFE.’ ” (Id. at United States District Court, E.D. New York. 10.) Pratz “immediately ran up to [physician's assistant] Tate Wagener and falsely claim[ed] that [the plaintiff] refused Monica REVILL, Plaintiff, to give [her] name.” (Id. at 10–11.) Wegener “falsely v. designat[ed] [the plaintiff] as a danger to [her]self and others” Erik PRATZ, Police Officer, Badge #30562; Christian without speaking to the plaintiff, evaluating her medical Tate Wegener, Physician Assistant; Maxwell Scott condition, or seeking her consent to treatment. (Id. at 14.) The Withorn, Registered Nurse; Mark Rydzewski, Doctor plaintiff says that Pratz, “having access to [her] vehicle and of Osteopathic; Jessica E. Pooran, Registered Nurse; aware of [her] Bronx purchases, fabricated [the prehospital] John Doe # 2, Queens Hospital Staff; John Doe # narrative and relayed it to Wagener and [another doctor who signed the consent for treatment].” (Id. at 12–13.) Pratz also 3, Queens Hospital Staff; Taurean Dwight Howard, allegedly covered his cell phone with a latex glove and Medical Doctor; Denesha C. Findley, Physician recorded the plaintiff. (Id. at 11.) Assistant; Christian Chudi Eyiuche, Medical Doctor; and John Doe # 1, Queens Hospital Staff, Defendants. The plaintiff “attempted to call her husband” and remove the “stretch cot straps with the intention of using the 24-CV-2782 (AMD) (JAM) restroom.” (Id. at 12.) At this point, “RN Weithorn turn | around and screamed ‘OH MY GOD! SHE'S AWAKE, NO Signed May 1, 2024 YOU CAN'T LEAVE;’ ” the hospital staff “attacked” her and “Withorn3 ran towards [her] with a pointed needle in the air and stabbed [her] in the upper right neck and back.” (Id.). The MEMORANDUM DECISION AND ORDER plaintiff “was rendered unconscious from approximately 6:42 ANN M. DONNELLY, United States District Judge: am to 12:30 pm.” (Id. at 12.) During that time, the plaintiff says, Wegener searched her purses, got access to her medical *1 On April 11, 2024, the pro se plaintiff filed a records, undressed her, and “injected [her] with a circular downloadable form complaint titled “Complaint for Violation multi pin needle in [her] upper left thigh ....” (Id.)4 of Civil Rights,” as well as a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) The complaint does not describe *2 The plaintiff claims Mark Rydzewski, Jessica Pooran, the requested relief or assert a basis to invoke the Court's Denesha Findley, and Chudi Eyiuche, whom she identifies jurisdiction. The plaintiff's in forma pauperis application as medical staff, “did not assess or evaluate [her] medical is granted for the limited purpose of this Order. For the condition.” (Id. at 13.) However, the plaintiff also alleges: following reasons, the Court dismisses the complaint sua Rydzewski “said [the plaintiff] appeared to be under the sponte with leave to amend. influence of a substance with erratic and violent behavior;” Pooler reported that at 11:48 a.m., the plaintiff had a stroke and seizure and fell off of her bed; at 11:53 a.m., Findley BACKGROUND and Eyiuche “said [the plaintiff] was standing up” and “consented to a psychiatric evaluation;” Findley also retrieved On April 11, 2021, the plaintiff's “motor functions shut down” the plaintiff's home phone number from her cellular phone, and she needed to go to the hospital “to find out if there called the plaintiff's husband, and asked him questions about was a date rape substance in [her] system;” she told her the plaintiff's psychiatric history. Id. at 13–14. husband to “call EMS and the police.”1 (ECF No. 1 at 10.) When the police arrived, the plaintiff told them that she had The plaintiff says she woke up at a 12:30 p.m.5 “in a different been drugged. (Id.) The police then “cut off the ignition room from where the attack took place.” (Id. at 14.) Around to [her] parked car” and gave her keys “to Police Officer 3:00 p.m., one of the plaintiff's friends arrived and Registered Erick Pratz.” (Id.) Pratz also “took [the plaintiff's] purse and Nurse Jijo Jacob told the plaintiff that she could leave. As searched it.” (Id. at 10, 12–13.) she was walking out of her room “to call the Police Precinct Mortimor yelled ‘NO YOU CAN'T LEAVE.’ ” (Id.) Dr. that the defendant is liable for the misconduct alleged.” Taurean Dwight Howard “ran up” to the plaintiff and her Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, friend in the hallway “yelling, and pointing at [the plaintiff's] 550 U.S. at 556). “Factual allegations must be enough to swollen left hand” and said, ‘Look what happened between raise a right to relief above the speculative level on the you and the police,’ falsely accusing [her] of fighting the assumption that all the allegations in the complaint are true.” Police.” (Id. at 14.) Twombly, 550 U.S. at 555 (citations omitted). Further, if the Court “determines at any time that it lacks subject-matter On April 12, 2021, the plaintiff “lodged a verbal complaint jurisdiction, [it] must dismiss the action.” Fed. R. Civ. P. with Ms. Bipasha Haque from Patient Relations NYC Queens 12(h)(3); see also Cortlandt St. Recovery Corp. v. Hellas Hospital” about the alleged attack on the ambulance stretcher. Telecomms., S.A.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015). (Id. at 16.) When the plaintiff said she was injured, Haque asked if she was “going to sue.” (Id.) *3 In addition, Rule 8 of the Federal Rules of Civil Procedure instructs that the plaintiff must provide a short, On April 14, 2021, the plaintiff requested medical records plain statement of claim against each defendant named from “Queens HIM.”6 (Id. at 15.) On April 16, 2021, the so that they have adequate notice of the claims against plaintiff spoke with Dr. Howard, who told her that she “was a them. Iqbal, 556 U.S. at 678 (Rule 8 “demands more danger to [her]self and others,” and he and the hospital staff than an unadorned, the-defendant-unlawfully-harmed-me “treated [her] accordingly.” (Id.) On May 4, 2021, the plaintiff accusation.”). “[U]nnecessary prolixity in a pleading places received a partial medical record, which included lab results. an unjustified burden on the court and the party who must (Id.) The plaintiff requested additional records but says she respond to it because they are forced to select the relevant has not received the full record of treatments, clinical notes, material from a mass of verbiage.” Salahuddin v. Cuomo, or medication documentation. (Id.) 861 F.2d 40, 42 (2d Cir. 1988) (citation omitted); Komatsu v. City of New York, No. 20-CV-7046, 2021 WL 3038498, On May 1, 2021, the plaintiff went to St. Luke's Hospital in at *5 (S.D.N.Y. July 16, 2021) (noting that “length is only Utica, New York. (Id. at 18.) She says that “[u]nbeknownst one consideration under Rule 8,” and other issues include to [her], [a physician's assistant] repeated the drug test “redundancy and frequent frolics into seemingly irrelevant PA Wegener of Queens hospital conducted on April 11th, materials [which] inhibit the Court and Defendants’ ability to without [her] consent or explanation. Given that PA Wegener understand the nature of many of the issues he has raised.”). of Queens hospital initially ordered the drug test, it can Dismissal of a complaint for failure to comply with Rule 8 be inferred that there was communication between them is generally reserved for cases where the complaint is “so regarding the repetition.” (Id.) confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Salahuddin, 861 F.2d at 42. This standard is applied with special lenience to pro se pleadings. See Simmons v. Abruzzo, 49 F.3d 83, 87 (2d LEGAL STANDARD Cir. 1995). A pro se plaintiff's complaint must be “liberally construed, Finally, 28 U.S.C. § 1331 provides that “district courts shall and ... however inartfully pleaded, must be held to less have original jurisdiction of all civil actions arising under stringent standards than formal pleadings drafted by lawyers.” the Constitution, laws or treaties of the United States.” “A Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) case aris[es] under federal law within the meaning of § 1331 (citations omitted). However, the district court must dismiss ... if a well-pleaded complaint establishes either that federal an in forma pauperis complaint if it “is frivolous,” “fails law creates the cause of action or that the plaintiff's right to state a claim on which relief may be granted,” or “seeks to relief necessarily depends on resolution of a substantial monetary relief against a defendant who is immune from question of federal law.” Empire Healthchoice Assurance, such relief.” 28 U.S.C. § 1915(e)(2)(B). To avoid dismissal Inc. v. McVeigh, 547 U.S. 677, 689–90 (2006). A plaintiff for failure to state a claim, a complaint must plead “enough properly invokes § 1331 jurisdiction when he or she pleads facts to state a claim to relief that is plausible on its face.” a colorable claim “arising under” the Constitution or laws of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A the United States. Arbaugh v. Y & H Corp., 546 U.S. 500, 513 be dismissed for want of subject-matter jurisdiction if it is searches were improper. not colorable, i.e., if it is ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial The plaintiff also claims that Wegener and Weithorn gave her and frivolous.’ ” Id. at 513 n.10. Although courts hold pro se injections, and that certain hospital staff deemed her to be “a complaints “to less stringent standards than formal pleadings danger to herself and others.” (Id. at 14.) She appears to have drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980), been discharged from the hospital later that same day. The pro se litigants must still establish subject matter jurisdiction. plaintiff's only claims against Rydzewski, Pooran, Findley, See, e.g., Rene v. Citibank N.A., 32 F. Supp. 2d 539, 541–42 Eyiuche, and Jacob are that they made notes in her medical (E.D.N.Y. 1999). records but did not “assess or evaluate” her medical condition. (Id. at 13–14.) Finally, she names four John Doe defendants, but she does not describe how these individuals are involved or why their conduct is actionable. The plaintiff says that she DISCUSSION did not consent to treatment, but does not explain how these I. Section 1915 and Rule 8 allegations amount to a constitutional violation. The complaint, construed liberally, does not “disclose sufficient information to permit the defendant[s] to have a fair These deficiencies justify dismissal under both § 1915(e)(2) understanding of what the plaintiff is complaining about and (B) and Rule 8. Chavez v. Cause Yall Took My Phone I Don't to know whether there is a legal basis for recovery.” Kittay Know Their Names, No. 21-CV-8526, 2021 WL 5401485, at v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000); Harnage v. *1 (S.D.N.Y. Nov. 16, 2021) (“The complaint does not contain Lightner, 916 F.3d 138, 141 (2d Cir. 2019). The plaintiff a single fact suggesting that [the plaintiff] can state a viable did not complete the sections of the form complaint that claim that falls within the Court's jurisdiction.”); Hodge ask for the jurisdictional basis for the plaintiff's claims, the v. New York Unemployment, No. 24-CV-1631, 2024 WL location of the alleged violations, or the requested relief 1513643, at *1 (E.D.N.Y. Apr. 8, 2024); see also Salahuddin, —nor does the plaintiff's appended narrative provide these 861 F.2d at 42. details. This alone is a sufficient basis for dismissal. See Koso v. Haegele, No. 18-CV-4400, 2018 WL 6531496, at *1–2 II. Section 1983 (E.D.N.Y. Dec. 11, 2018) (dismissing sua sponte where “[the If the plaintiff intends to pursue a claim under 42 U.S.C. § p]laintiff ... left blank the entire section of the form complaint 1983, the conduct alleged must have “been committed by relating to the basis for this Court's jurisdiction” and did a person acting under color of state law,” and “deprived a not otherwise “identify any federal law pertaining to her person of rights, privileges or immunities secured by the claims”); see also Clarkes v. Hughes, No. 17-CV-961, 2018 Constitution or laws of the United States.” Pitchell v. Callan, WL 5634932, at *3 (E.D.N.Y. Oct. 30, 2018) (dismissing 13 F.3d 545, 547 (2d Cir. 1994); see also McGugan v. Aldana- allegations of constitutional violations for lack of subject Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (“To state a claim matter jurisdiction); cf. Villatoro v. Toulon, No. 22-CV-109, under § 1983, a plaintiff must allege that defendants violated 2022 WL 493181, at *3 (E.D.N.Y. Feb. 17, 2022) (dismissing plaintiff's federal rights while acting under color of state Section 1983 claim because “there are no factual allegations law.”); Schiff v. Suffolk Cnty. Police Dep't, No. 12-CV-1410, in the complaint concerning any conduct or inaction” by the 2015 WL 1774704, at *5 (E.D.N.Y. Apr. 20, 2015). defendant). Here, the plaintiff does not allege facts sufficient to show *4 Further, the plaintiff does not explain how the allegations that the defendants acted in concert with state actors in in the complaint amount to a constitutional violation. She furtherance of an unconstitutional act. She does not explain claims that Pratz, a police officer, searched her purse without how the actions of seemingly private parties—the hospital her consent and then provided false information to the staff members—are attributable to the state in any way. hospital staff. She also says that Wegener searched her purse Private conduct, no matter how discriminatory or wrongful, and accessed her medical records. She suggests that Pratz is generally beyond the reach of § 1983. See American and Wegener were looking for identifying information and Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, (1999); cf. medical information; however, she does not explain how this Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, departs from routine hospital procedure and treatment, and and the challenged action’ that seemingly private behavior the Long Form in forma pauperis application and include ‘may be fairly treated as that of the State itself.’ ”) (quoting sufficient financial information to establish that she is “unable Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). to pay [filing] fees or give security therefor.” 28 U.S.C. § And in fact, hospitals and hospital staff are “generally not 1915(a)(1); see Adkins v. E.I. DuPont de Nemours & Co., considered” state actors. Anthony v. Med. Staff at Inst., No. 16- 335 U.S. 331, 339 (1948) (A litigant qualifies to proceed in CV-1122, 2016 WL 1383491, at *2 (E.D.N.Y. Apr. 7, 2016) forma pauperis if she “cannot because of his poverty pay (quoting White v. St. Joseph's Hosp., 369 F. App'x 225, 226 or give security for” the costs of filing “and still be able to (2d Cir. 2010)); see Kia P. v. McIntyre, 235 F.3d 749, 757 n.3 provide himself and [his] dependents with the necessities of (2d Cir. 2000) (“Our decision in this case turns in large part life.”); Bey v. Queens Cnty., Supreme Cts., No. 19-CV-2038, on our conclusion that the [private] Hospital was not a state 2019 WL 11690197 (E.D.N.Y. May 1, 2019) (dismissing actor when it provided medical care to [plaintiff].”); Jones the action without prejudice where the plaintiffs did not v. Beth Israel Hosp., No. 17-CV-3445, 2018 WL 1779344, pay the filing fee or submit an adequate in forma pauperis at *5 (S.D.N.Y. Apr. 12, 2018) (dismissing § 1983 claims application). The plaintiff says that she has no income or other against hospital and noting that “[i]t is well established that assets. However, she does not explain how she makes her private conduct is not controlled by Section 1983, unless the house payments or pays for the necessities of daily living. private entity's challenged actions are fairly attributable to If the plaintiff's husband is providing financial support, that the state.”); Abdul-Rahman v. Brooklyn Hosp. Ctr., No. 10- support is relevant to her claim of indigency; the Long Form CV-1697, 2010 WL 1838607, at *1 (E.D.N.Y. Apr. 30, 2010) application allows both spouses to provide their relevant (“[Brooklyn Hospital] is a private entity and its employees are financial information. private parties, not state actors.”). *5 Even assuming that Pratz, the only defendant who is CONCLUSION not employed by the hospital, violated her constitutional rights, the plaintiff must explain how the private parties are For these reasons, the complaint is dismissed. The Second “jointly engaged” in that conduct. See, e.g., Betts v. Shearman, Circuit has advised that district courts “should not dismiss 751 F.3d 78, 85 (2d Cir. 2014) (“Where ... a police officer [a pro se complaint] without granting leave to amend at exercises independent judgment in how to respond to a private least once when a liberal reading of the complaint gives party's legitimate request for assistance, the private party is any indication that a valid claim might be stated.” Cuoco not jointly engaged in the officer's conduct so as to render it a v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, state actor under Section 1983.” (quoting Ginsberg v. Healey where a court does not find that the complaint, liberally Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999))). construed, “suggests that the plaintiff has a claim that she She does not do so here. The plaintiff is therefore on notice has inadequately or inartfully pleaded,” but instead that “[t]he of Section 1983’s requirements should she choose to amend problem with [the plaintiff's] causes of action is substantive her complaint. [and] better pleading will not cure it,” “[r]epleading would ... be futile” and leave to replead “should be denied.” Id. (citing Hunt v. All. N. Am. Gov't Income Tr., 159 F.3d 723, 728 (2d III. In Forma Pauperis Application Cir. 1998)). Finally, the plaintiff's application to proceed in forma pauperis is incomplete. The plaintiff says that she is The Court has carefully considered the allegations in the unemployed and has no income or cash. (ECF No. 2 at 1, complaint and, out of an abundance of caution, grants 3.) However, she owns a car valued at $15,000 and makes the plaintiff leave to amend within 30 days. However, as monthly mortgage payments of $300 a month. (Id. at 3.) explained above, the plaintiff must provide a “short and She also reports a “school loan” to Nelnet7 in the amount plain statement” of facts sufficient to demonstrate how the of $70,000. Id. The application does not explain how the defendants violated her constitutional rights. The plaintiff plaintiff makes her house and student loan payments, or how is also on notice of the requirements to pursue a § 1983 she affords basic necessities, given her reported income. claim. If the plaintiff chooses to amend without addressing the deficiencies identified in this Order, or does not amend without a second chance to amend and close the case. Assistance Project in Brooklyn by calling (212) 382-4729. *6 The plaintiff is advised that the amended complaint will SO ORDERED. replace the original complaint, must be captioned “Amended Complaint,” and must bear the same docket number as this All Citations Memorandum and Order: 1:24-CV-2782 (AMD) (JAM). For free, limited-scope legal assistance, the plaintiff may wish to Slip Copy, 2024 WL 1908587 Footnotes 1 The plaintiff does not identify where this incident took place. 2 The plaintiff does not identify which hospital, although it appears that the plaintiff went to a hospital in Queens, New York. (ECF No. 1 at 15 (“On April 14, 2021, I requested a copy of my entire medical record from Queens HIM and did not receive it.”).) 3 The plaintiff spells the defendants’ names in different ways throughout the complaint. 4 She also says that the hospital staff gave her “additional” injections, but these “medications and treatments are absent from [her] medical record.” (ECF No. 1 at 12.) 5 It is not clear from the complaint how she “consented to a psychiatric evaluation at 11:53 a.m.” (id. at 13), but did not wake up until noon. 6 It is not clear what the plaintiff means by “Queens HIM.” 7 Nelnet is a student loan services organization. See Nelnet Landing Page, https://nelnet.com/ (last visited May 1, 2024). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2024 WL 3063679 amended complaint. See Dkt. No. 20. Magistrate Judge Only the Westlaw citation is currently available. Katz issued a Report-Recommendation on April 26, 2024, United States District Court, N.D. New York. recommending that Plaintiff's second amended complainant be dismissed with prejudice and without leave to amend. See Gary Arthur HOLYOKE, Plaintiff, Dkt. No. 21. On May 6, 2024, Plaintiff filed objections. See v. Dkt. No. 22. Plaintiff's objections are one page and state as S.S.I., et al., Defendants. follows: 6:23-CV-1557 (MAD/MJK) | I object to this case being dismissed Signed June 20, 2024 due to the fact of over thirty years of doctors holding me against my will Attorneys and Law Firms and causing the loss of the prime of GARY ARTHUR HOLYOKE, 13 Lennon Place, Whitesboro, my life by alot [sic] of false beliefs New York 13492, Plaintiff, pro se. and accusations that took up to[o] much time of my life that I am due compensation. ORDER Mae A. D'Agostino, United States District Judge: Dkt. No. 22. *1 On December 12, 2023, Plaintiff Gary Arthur Holyoke “When only a general objection is made to a portion of a commenced this action, pro se, by filing a complaint and a magistrate judge's report-recommendation, the Court subjects motion to proceed in forma pauperis (“IFP”). See Dkt. Nos. that portion of the report-recommendation to only a clear error 1, 2. On January 2, 2024, Magistrate Judge Andrew T. Baxter review.” Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677, 684 issued an Order and Report-Recommendation granting (N.D.N.Y. 2015) (citing FED. R. CIV. P. 72(b)). After the Plaintiff's IFP motion and recommending that Plaintiff's appropriate review, “the court may accept, reject, or modify, complainant be dismissed without prejudice and with leave in whole or in part, the findings or recommendations made by to amend as to Defendants City of Utica and Oneida County. the magistrate judge.” 28 U.S.C. § 636(b)(1). See Dkt. No. 7. Magistrate Judge Baxter recommended dismissing Plaintiff's complaint without prejudice but without As Plaintiff is proceeding pro se, the Court must review leave to amend as to all other Defendants. See id. Plaintiff his complaint under a more lenient standard. See Govan objected to Magistrate Judge Baxter's Order and Report- v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003). Recommendation, filed a notice of change of address, and The Court must make “reasonable allowances to protect amended his complaint on February 12, 2024. See Dkt. Nos. pro se litigants from inadvertent forfeiture of important 14, 15, 16. rights because of their lack of legal training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus, “a document On February 20, 2024, the Court adopted Magistrate Judge filed pro se is ‘to be liberally construed,’ ... and ‘a pro se Baxter's Order and Report-Recommendation in its entirety complaint, however in artfully pleaded, must be held to less and granted Plaintiff leave to amend his complaint as to stringent standards than formal pleadings drafted by lawyers.” Defendants City of Utica and Oneida County. See Dkt. No. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 17. The Court also ordered that Plaintiff's amended complaint Gamble, 429 U.S. 97, 106 (1976)) (internal citation omitted). be referred to Magistrate Judge Mitchell J. Katz for review “Although the court has the duty to show liberality towards pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. See id. pro se litigants, ... there is a responsibility on the court to determine that a claim has some arguable basis in law before As Plaintiff's amended complaint was prepared without the permitting a plaintiff to proceed with an action in forma benefit of the Court's February Order, Magistrate Judge Katz pauperis.” Moreman v. Douglas, 848 F. Supp. 332, 333-34 granted Plaintiff forty-five days to amend his complaint. See *2 Having reviewed Magistrate Judge Katz's Report- Grp. Home Living Program, Inc. 546 F.3d 255, 257 (2d Cir. Recommendation, Plaintiff's second amended complaint, and 2008); Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, the applicable law, the Court does not discern any clear error 312 (2d Cir. 2003). As explained in this Court's February in Magistrate Judge Katz's recommendations. Order, Mohawk Valley Health System is a private healthcare organization. See Dkt. No. 17 at 3. As such, Wynn Medical Magistrate Judge Katz correctly determined that Plaintiff's Center, operating under Mohawk Valley Health System, is second amended complaint should be dismissed as against a private actor. Plaintiff failed to allege that Wynn Medical Mohawk Valley Community Services, Scott Buddle, Jeremy Center is a state actor or engaged in any state action. Thus, Dawes, “workers of the 9th floor,” Dr. Westmoreland, Magistrate Judge Katz correctly found that Plaintiff failed to Dr. Lynwynn Wynn, Bob Michelle, and the “other case state a claim pursuant to § 1983. See Dkt. No. 21 at 5. managers” for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. See Dkt. No. 21 at 4. To properly *3 Magistrate Judge Katz was also correct in his assert a claim, a plaintiff must allege some act or omission determination that Dr. Nalin Sinha, as a provider working in on the part of each defendant that gives rise to the alleged a private medical facility, generally would not be considered deprivation. See Gonzalez v. City of New York, No. 97- a state actor for purposes of § 1983. See Dkt. No. 21; see CV-2246, 1998 WL 382055, *2 (S.D.N.Y. July 9, 1998) also Estiverne v. Esernio, 910 F. Supp. 2d 434, 443 (E.D.N.Y. (finding dismissal to be proper when the complaint only 2012). Specifically, Magistrate Judge Katz explained that included the defendant's name in the caption and did not private hospitals and doctors are not state actors for purposes allege personal involvement of the defendant); Crown v. of § 1983 liability when engaging in their role under New Wagenstein, No. 96-CV-3895, 1998 WL 118169, *2 (S.D.N. York's civil commitment scheme. See Dkt. No. 21 at 6; see Y Mar. 16, 1998) (same). Because Plaintiff only named the also Okunieff v. Rosenberg, 996 F. Supp. 342 (S.D.N.Y. 1998), aforementioned Defendants in his case caption, but failed to aff'd, 166 F.3d 507 (2d Cir. 1999); Elisens v. Auburn Cmty. articulate facts supporting a cause of action against them in Hosp., No. 5:19-CV-1236, 2021 WL 1027915, *2 (N.D.N.Y. the body of his complaint, Magistrate Judge Katz's correctly Mar. 17, 2021) (finding that a private physician was not concluded that the second amended complaint must be acting under color of law when they involuntarily committed dismissed against those Defendants. See Dkt. No. 21 at 3. a patient to a psychiatric unit). The Court agrees with Magistrate Judge Katz's recommendation and concludes that Magistrate Judge Katz was also correct in his determination Plaintiff's second amended complaint should be dismissed as that Plaintiff's allegation of discrimination should be against Defendants Wynn Medical Center and Dr. Sinha. dismissed for his failure to comply with Rule 8. See id. at 4. “The Second Circuit has found dismissal appropriate In its February Order, this Court dismissed Plaintiff's claims pursuant to Rule 8 when a complaint is ‘unintelligible’ and without leave to amend against Defendants I.R.S., S.S.I., and fails to ‘explain[ ] what conduct constituted the violations, Medicare on sovereign immunity grounds. See Dkt. No. 17 which defendants violated which statutes ... or how the at 3-4. Plaintiff attempted to reallege claims against these alleged violations harms [the plaintiff].’ ” Vantone Group Defendants in his second amended complaint, see Dkt. No. 20 LLC v. Yangpu NGT Indus. Co., No. 13-CV-7639, 2015 at 1, 9, and Magistrate Judge Katz correctly determined that WL 4040882, *4 (S.D.N.Y. July 2, 2015) (quoting Strunk v. such claims must be dismissed. See Dkt. No. 21 at 7. U.S. House of Representatives, 68 Fed. Appx. 233, 235 (2d. Cir. 2003)) (alterations in original). Thus, Plaintiff's general In addressing Plaintiff's claim against Defendant Assertive allegation of “discrimination” by “different services” does Community Treatment team (“ACT team”), Magistrate Judge not sufficiently set forth a claim under Rule 8. Dkt. No. Katz found that the ACT team is an extension of the New York 20 at 13. The Court agrees with Magistrate Judge Katz's State of Office of Mental Health, and, as such, is an entity recommendation that this purported claim must be dismissed of the state. See Dkt. No. 21 at 8. Thus, he concluded that for failure to state a claim. See Dkt. No. 21 at 5. Plaintiff is barred by the Eleventh Amendment from bringing a suit against the ACT team in federal court. See id.; see Next, Magistrate Judge Katz states, as this Court set forth also Klestinez v. ACT Team, No. 6:21-CV-696, 2021 WL in its February Order, that in order to bring a claim under 4086128, *3 (citing Limwongse v. New York State Office of 42 U.S.C. § 1983, Plaintiff must plead state action. See Dkt. Mental Health, 249 Fed. Appx. 862, 862-63 (2d Cir. 2007)). determination. filing frivolous actions in this Court and has been unable to articulate any plausible claim for relief in this action despite With regard to the individual ACT team member Defendants, being afforded the opportunity to amend his complaint. See the Court agrees with Magistrate Judge Katz's finding that Dkt. No. 21 at 9. Thus, the Court denies Plaintiff further leave the Plaintiff's second amended complaint fails to state a claim to amend. upon which relief can be granted and should be dismissed as to these Defendants. See Dkt. No. 17 at 9. Plaintiff failed *4 Accordingly, the Court hereby to allege what conduct giving rise to a claim is attributable to each of the individual Defendants; therefore, Plaintiff has ORDERS that Magistrate Judge Katz's Report- not set forth a plausible basis upon which he can bring Recommendation (Dkt. No. 21) is ADOPTED in its entirety for the reasons set forth herein; and the Court further claims against the individual members of the ACT team. See Dkt. No. 21 at 8; see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (“It is well settled in this Circuit that ORDERS that Plaintiff's second amended complaint (Dkt. ‘personal involvement of defendants in alleged constitutional No. 20) is DISMISSED with prejudice and without leave deprivations is a prerequisite to an award of damages under § to amend; and the Court further 1983’ ”) (quotation omitted); Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). ORDERS that the Clerk of the Court shall enter judgment in Defendants’ favor and close this case; and the Court further Concerning an opportunity to amend, Magistrate Judge Katz recommended that Plaintiff not be given another opportunity ORDERS that the Clerk of the Court serve a copy of this Order upon Plaintiff in accordance with Local Rules. to amend his complaint. See Dkt. No. 21 at 9. Leave to amend may be denied where a plaintiff has already been given leave to amend and has failed to cure identified deficiencies. See IT IS SO ORDERED. Amrod v. YouGov, No. 1:23-CV-1104, 2023 WL 8432314, *6 (N.D.N.Y. Dec. 5, 2023). Leave to amend may also be All Citations denied where it would be futile. See Panther Partners Inc. v. Ikanos Communications, Inc., 681 F.3d 114, 119 (2012). Slip Copy, 2024 WL 3063679 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2021 WL 1027915 Motion to Dismiss. In addition, Bilal separately filed a motion Only the Westlaw citation is currently available. for summary judgment. Dkt. Nos. 37 (“Bilal's Motion for United States District Court, N.D. New York. Summary Judgment”); 37-5 (“Bilal's Memorandum of Law”); 39 (“Plaintiff's Opposition to Bilal's Motion for Summary Brent Allen ELISENS, Plaintiff, Judgment”); 40 (“Bilal's Reply”). Lastly, Plaintiff submitted v. a fifth motion to appoint counsel. Pl.’s Opp'n to Bilal's Mot. AUBURN COMMUNITY for Summ. J. at 1. For the reasons that follow, the Court grants HOSPITAL, et al., Defendants. both motions to dismiss and dismisses the Complaint. The Court also dismisses Bilal's Motion for Summary Judgment 5:19-CV-1236 (LEK/TWD) and Plaintiff's motion to appoint counsel for lack of subject- | matter jurisdiction. Signed 03/17/2021 Attorneys and Law Firms II. BACKGROUND The following factual allegations are assumed to be true. Brent Allen Elisens, Bangor, ME, pro se. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 76 (2d Cir. 2015). Plaintiff's factual allegations are detailed Paul D. Jureller, Alicia M. Dodge, Erin P. Mead, Thorn in a previous Memorandum-Decision and Order, familiarity Gershon Tymann & Bonanni, Albany, NY, for Defendant with which is assumed. See Dkt. No. 8 (“February 2020 Auburn Community Hospital. Memorandum-Decision and Order”) at 2. For convenience, John D. Aspland, Fitzgerald Morris Baker Firth, P.C., Glens the Court summarizes Plaintiff's allegations here. Falls, NY, for Defendants Colleen Curr, Cayuga County Mental Health, Dr. Michael Pratts, Faith Emerson. On or about September 6, 2019, Plaintiff attempted to file a grievance against Curr, who works at Cayuga County Mental Kevin E. Hulslander, Brady J. O'Malley, Smith, Sovik, Health (“CCMH”), for refusing to order a student leave the Kendrick & Sugnet, P.C., Syracuse, NY, for Defendant Dr. room during an appointment. Compl. at 2. Plaintiff was told Ahmad Bilal. to return the following week. Id. When Plaintiff returned, Dr. Michael Pratts asked Plaintiff if he had been admitted to inpatient care before, and Plaintiff confirmed that he had. Id. MEMORANDUM-DECISION AND ORDER Later that day, a New York State Trooper picked up Plaintiff for involuntary commitment to the psychiatric unit at ACH Lawrence E. Kahn, U.S. District Judge with a diagnosis of schizophrenia and delusional disorder. Id. Bilal examined Plaintiff the following day, made fun of him, I. INTRODUCTION and told him he would remain in the hospital for weeks. Id. *1 Pro se plaintiff Brent Allen Elisens filed an action Bilal and Curr ignored multiple forms of proof that Plaintiff against Auburn Community Hospital (“ACH”), Colleen provided that indicated he was not delusional, homicidal, or Curr, and Dr. Ahmad Bilal, a doctor employed at ACH suicidal. Id. (collectively, “Defendants”). Dkt. No. 1 (“Complaint”). Plaintiff alleges that Defendants violated his constitutional Plaintiff asserts: (1) 42 U.S.C. § 1983 claims against Bilal rights and committed medical malpractice by committing related to his illegal seizure and denial of due process resulting him involuntarily pursuant to New York's Mental Health and from Plaintiff's involuntary confinement, and (2) New York Hygiene Law. See generally id. State medical malpractice claims against Bilal, Curr, and ACH. See Compl. at 2–3; February 2020 Mem.-Decision and Presently before the Court are motions to dismiss by ACH Order at 1–2. and Curr pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. Nos. 26 (“ACH's Motion to Dismiss”); 26-6 (“ACH's Memorandum of Law”); 30 (“Curr's Motion III. LEGAL STANDARD to Dismiss”); 30-2 (“Curr's Memorandum of Law”); 33 *2 To survive a motion to dismiss pursuant to Federal to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, not exempt a party from compliance 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) with relevant rules of procedural and (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, substantive law.... 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Fed. R. Civ. P. 12(b)(6). A court must accept as true the factual allegations contained in a complaint and draw all inferences Id. (internal citations omitted); see also Sealed Plaintiff v. in favor of a plaintiff. See Allaire Corp. v. Okumus, 433 Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On F.3d 248, 249–50 (2d Cir. 2006). A complaint may be occasions too numerous to count, we have reminded district dismissed pursuant to Rule 12(b)(6) only where it appears courts that when [a] plaintiff proceeds pro se, ... a court that there are not “enough facts to state a claim to relief that is obligated to construe his pleadings liberally.”) (internal is plausible on its face.” Twombly, 550 U.S. at 570, 127 citations omitted). S.Ct. 1955. Plausibility requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of “Where a properly filed motion [to dismiss] is unopposed [the alleged misconduct].” Id. at 556, 127 S.Ct. 1955. The and the Court determines that the moving party has met plausibility standard “asks for more than a sheer possibility its burden to demonstrate entitlement to the relief requested that a defendant has acted unlawfully.” Iqbal, 556 U.S. at therein, the non-moving party's failure to file or serve any 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, papers ... shall be deemed as consent to the granting or denial 127 S.Ct. 1955). “[T]he pleading standard Rule 8 announces of the motion, as the case may be, unless good cause be does not require ‘detailed factual allegations,’ but it demands shown.” N.D.N.Y. L.R. 7.1(b)(3). Under such circumstances, more than an unadorned, the-defendant-unlawfully-harmed- dismissal is appropriate where the movant's argument for me accusation.” Id. (citing Twombly, 550 U.S. at 555, 127 dismissal is “facially meritorious.” See, e.g., Hernandez v. S.Ct. 1955). Where a court is unable to infer more than Nash, No. 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7– the mere possibility of the alleged misconduct based on the 8, 2003 WL 22143709 (N.D.N.Y. Sept. 10, 2003). pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678–79, 129 S.Ct. 1937. IV. DISCUSSION To state a claim under § 1983, a plaintiff must allege (1) the Where, as here, a party seeks judgment against a pro se violation of a right secured by the Constitution and laws of the litigant, a court must afford the non-movant special solicitude. United States, and (2) that the deprivation was committed by a See Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 person acting under the color of state law. See Vega, 801 F.3d (2d Cir. 2006). As the Second Circuit stated, at 87–88. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 [T]here are many cases in which S.Ct. 2689, 61 L.Ed.2d 433 (1979). we have said that a pro se litigant is entitled to special solicitude, that ACH argues that Plaintiff's § 1983 claims should be dismissed a pro se litigant's submissions must because its doctor, Bilal, was not acting under the color of be construed liberally, and that such state law. ACH's Mem. of Law at 9–17. The Court agrees. submissions must be read to raise the Here, Plaintiff asserts § 1983 claims against Bilal for his strongest arguments that they suggest. involuntary commitment of Plaintiff to ACH's psychiatric At the same time, our cases have unit. However, Plaintiff does not allege that Bilal was a state also indicated that we cannot read actor nor that he was acting under the color of state law. into pro se submissions claims that Because Plaintiff does not allege any facts to suggest that are not consistent with the pro se Bilal acted under state law or had any interaction or agreement litigant's allegations, or arguments that with New York State, Plaintiff's § 1983 claims are dismissed. the submissions themselves do not See Graham v. City of Albany, No. 08-CV-892, 2009 WL suggest, that we should not excuse 4263510, at *13 (N.D.N.Y. Nov. 23, 2009) (dismissing a § frivolous or vexatious filings by pro 1983 action brought by a pro se plaintiff for failure to allege where plaintiff “alleged no facts to suggest that [the private wishes. party] acted jointly with the [state] [d]efendants”); see also Doe v. Harrison, 254 F. Supp. 2d 338, 342–44 (S.D.N.Y. Because the Court dismisses Plaintiff's § 1983 claims against 2003) (dismissing a § 1983 suit against a private physician Bilal and does not have jurisdiction over Plaintiff's remaining because there was no allegation that state officials compelled state law claims, the Court dismisses Bilal's Motion for the private physician to hospitalize the plaintiff for twelve Summary Judgment for lack of subject-matter jurisdiction. days). Additionally, the Court dismisses Plaintiff's fifth motion to appoint counsel for lack of subject-matter jurisdiction. *3 Defendants argue that there is no independent basis for federal jurisdiction over Plaintiff's state law medical V. CONCLUSION malpractice claims if his § 1983 claims are dismissed. ACH's Accordingly, it is hereby: Mem. of Law at 17–19; see generally Curr's Mem. of Law. The Court again agrees. “In the interest of comity, the ORDERED, that ACH's’s Motion to Dismiss (Dkt. No. 26) Second Circuit instructs that ... where federal claims can be and Curr's Motion to Dismiss (Dkt. No. 30) are GRANTED disposed of ... courts should ‘abstain from exercising pendent in their entirety; and it is further jurisdiction.’ ” Birch v. Pioneer Credit Recovery, Inc., No. 06- CV-6497, 2007 WL 1703914, at *5 (W.D.N.Y. June 8, 2007) ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d DISMISSED; and it is further Cir. 1986)). Using its discretion, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims, ORDERED, that Bilal's Motion for Summary Judgment because it “has dismissed all claims over which it has original (Dkt. No. 37) and Plaintiff's fifth motion to appoint counsel jurisdiction.” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d (Dkt. No. 39) are DISMISSED; and it is further 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, ORDERED, that the Clerk is directed to close this case; and 250 (2d Cir. 2008) (“We have already found that the district it is further court lacks subject matter jurisdiction over appellants’ federal claims. It would thus be clearly inappropriate for the district ORDERED, that the Clerk serve a copy of this court to retain jurisdiction over the state law claims when Memorandum-Decision and Order on all parties in there is no basis for supplemental jurisdiction.”); Karmel accordance with the Local Rules. v. Claiborne, Inc., No. 99-CV-3608, 2002 WL 1561126, at *4 (S.D.N.Y. July 15, 2002) (“Where a court is reluctant IT IS SO ORDERED. to exercise supplemental jurisdiction because of one of the reasons put forth by § 1367(c), or when the interests of judicial economy, convenience, comity and fairness to litigants are not All Citations violated by refusing to entertain matters of state law, it should decline supplemental jurisdiction and allow the plaintiff to Not Reported in Fed. Supp., 2021 WL 1027915 decide whether or not to pursue the matter in state court.”). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2015 WL 151029 Recommendation (Dkt. No. 4) is ACCEPTED and Only the Westlaw citation is currently available. ADOPTED in its entirety; and it is further United States District Court, N.D. New York. ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED without leave to replead and without prejudice. Rudoph M. BRUCE, II, on behalf of himself and his son, T.R.B., Plaintiff, The Court hereby certifies, for purposes of 28 U.S.C. § v. 1915(a) (3), that any appeal taken from the Court's final TOMPKINS CNTY. DEP'T OF SOC. SERVS., judgment in this action would not be taken in good faith. through Kit KEPHART, Cmm'r; Jennifer M. Donlan, Esq.; and Patricia A. Carey, Comm'r, Tompkins Cnty. Dep't of Soc. Servs., Defendants. REPORT, RECOMMENDATION, AND ORDER No. 5:14–CV–0941 (GTS/DEP). DAVID E. PEEBLES, United States Magistrate Judge. | Pro se plaintiff Rudolph M. Bruce, II., purporting to act Signed Jan. 7, 2015. on behalf of himself and his son, T.R.B., has commenced Attorneys and Law Firms this action against Tompkins County Department of Social Services (“DSS”) and two individuals, pursuant to 42 U.S.C. Rudolph M. Bruce, II, Newfield, NY, pro se. § 1983, alleging that the defendants have deprived him and his son of their civil rights. Plaintiff's complaint and accompanying application for leave to proceed in forma DECISION and ORDER pauperis (“IFP”) have been referred to me for consideration. For the reasons set forth below, I recommend that plaintiff's GLENN T. SUDDABY, District Judge. complaint be dismissed without leave to replead. *1 Currently before the Court, in this pro se civil rights action filed by Rudolph M. Bruce, II, on behalf I. BACKGROUND of himself and his son T.R.B. (“Plaintiff”) against the This action was commenced on July 28, 2014. Dkt. No. 1. above-captioned county and two individuals (“Defendants”) Plaintiff's complaint asserts claims on his behalf and on behalf arising from a currently pending proceeding in Tompkins of his son, T.R.B., and names Tompkins County DSS, Kit County Family Court, are (1) United States Magistrate Judge Kephart, Jennifer M. Donlan, Esq., and Patricia A. Carey as David E. Peebles' Report–Recommendation recommending defendants. Id . at 1–2. Plaintiff's complaint is accompanied that Plaintiff's Complaint be dismissed without leave to by an application for leave to proceed IFP. Dkt. No. 2. replead and without prejudice pursuant to the Younger doctrine, and (2) Plaintiff's two-page Objection, which fails to In his complaint, plaintiff alleges that his son's First contain a specific challenge to the Report–Recommendation. Amendment right of free speech was infringed by the (Dkt.Nos .4, 5.) After carefully reviewing the relevant filings defendants, who apparently took custody of T.R.B. and his in this action, the Court can find no clear error in the Report– siblings1 on or about June 17, 2014, based upon T.R.B.'s Recommendation: Magistrate Judge Peebles employed the statement that “he would rather be dead if he could not be with correct legal standards, accurately recited the facts, and his family.”2 Dkt. No. 1 at 5. The complaint suggests that, reasonably applied the law to those facts. As a result, the prior to taking custody of T.R.B. and his siblings, Tompkins Court accepts and adopts the Report–Recommendation for County DSS investigated a complaint of alleged child neglect, the reasons stated therein. (Dkt. No. 4.) The Court would and proceedings before Honorable Joseph R. Cassidy, a add only that Magistrate Judge Peebles' thorough Report– Tompkins County Family Court Judge, have commenced Recommendation would survive even a de novo review. regarding the custody of the children. Id. at 6. ACCORDINGLY, it is defendants have deprived him of his right to custody of filing fee). “Legal frivolity ... occurs where ‘the claim is based his children under the First, Fourth, Fifth, and Fourteenth on an indisputably meritless legal theory [such as] when either Amendments, and have deprived T.R.B. of his First the claim lacks an arguable basis in law, or a dispositive Amendment right to free speech. See generally Dkt. No. 1. As defense clearly exists on the face of the complaint.’ “ Aguilar relief, plaintiff seeks (1) return of his children to his custody v. United States, Nos. 99–MC–0304, 99–MC–0408, 1999 WL and (2) Judge Cassidy's recusal from the pending family 1067841, at *2 (D.Conn. Nov. 8, 1999) (quoting Livingston v. court matter in Tompkins County or removal of the matter to Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998)); Broome County. Id. at 4, 7. see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory ... or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d. II. DISCUSSION 51, 53 (2d Cir.1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory, for the purposes of A. Application to Proceed IFP dismissal under section 1915(d), may be based upon a defense When a civil action is commenced in a federal district court, that appears on the face of the complaint.”). the statutory filing fee, currently set at $400, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, *3 When reviewing a complaint under section 1915(e), the to permit a litigant to proceed IFP if it determines that he is court looks to applicable requirements of the Federal Rules unable to pay the required filing fee. 28 U.S.C. § 1915(a)(1).3 of Civil Procedure for guidance. Specifically, Rule 8 of the In this instance, because I conclude that plaintiff meets the Federal Rules of Civil Procedure provides that a pleading requirements for IFP status, his application is granted.4 must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the B. Sufficiency of Plaintiff's Claims claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate 1. Standard of Review defense and determine whether the doctrine of res judicata is Because I have granted plaintiff's motion to proceed in forma applicable.” Powell v. Marine Midland Bank, 162 F.R .D. 15, pauperis, I must review the sufficiency of the claims set forth 16 (N.D.N.Y.1995) (McAvoy, J.) (quotation marks and italics in his complaint in light of 28 U.S.C. § 1915(e). Section omitted). 1915(e) directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the court A court should not dismiss a complaint if the plaintiff determines that ... the action ... (i) is frivolous or malicious; has stated “enough facts to state a claim to relief that is (ii) fails to state a claim on which relief may be granted; or plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. (iii) seeks monetary relief against a defendant who is immune 544, 570 (2007). “A claim has facial plausibility when the from such relief.” 28 U.S.C. § 1915(e)(2)(B). plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for In deciding whether a complaint states a colorable claim, the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, a court must extend a certain measure of deference in 678 (2009). Although the court should construe the factual favor of pro se litigants, Nance v. Kelly, 912 F.2d 605, allegations in a light most favorable to the plaintiff, “the tenet 606 (2d Cir.1990) (per curiam), and extreme caution should that a court must accept as true all of the allegations contained be exercised in ordering sua sponte dismissal of a pro se in a complaint is inapplicable to legal conclusions.” Iqbal, 556 complaint before the adverse party has been served and the U.S. at 678. “Threadbare recitals of the elements of a cause parties have had an opportunity to address the sufficiency of action, supported by mere conclusory statements, do not of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus, “where 37, 41 (2d Cir.1983). However, the court also has an the well-pleaded facts do not permit the court to infer more overarching obligation to determine that a claim is not legally than the mere possibility of misconduct, the complaint has frivolous before permitting a pro se plaintiff's complaint alleged-but it has not ‘show[n]'-‘that the pleader is entitled to to proceed. See, e.g., Fitzgerald v. First East Seventh St. relief.’ “ Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) (holding that 2. Analysis of Plaintiff's Claims C. Whether to Permit Amendment It is clear from plaintiff's complaint that the claims asserted Ordinarily, a court should not dismiss a complaint filed by a on his behalf and on behalf of T.R.B. directly relate to pro se litigant without granting leave to amend at least once a pending proceeding before Judge Cassidy in Tompkins “when a liberal reading of the complaint gives any indication County Family Court regarding the custody of T.R.B. and that a valid claim might be stated.” Branum v. Clark, 927 F.2d his siblings. Dkt. No. 1 at 6. Pursuant to Younger v. Harris, 698, 704–05 (2d Cir.1991); see also Fed.R.Civ.P. 15(a) ( “The 401 U.S. 37, 43–45 (1971), and its progeny, however, a court should freely give leave when justice so requires.”); federal district court does not have jurisdiction over an action see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. seeking injunctive or declaratory relief “where ‘1) there is 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where an ongoing state proceeding; 2) an important state interest court could “not determine that the plaintiffs would not, is implicated; and 3) the plaintiff has an avenue open for under any circumstances, be able to allege a civil RICO review of constitutional claims in state court.’ “ Parent v. N.Y., conspiracy”). An opportunity to amend is not required, 485 F. App'x 500, 503 (2d Cir.2012) (quoting Liberty Mut. however, where “the problem with [the plaintiff's] causes of Ins. Co. v. Hurlbut, 585 F.3d 639, 647 (2d Cir.2009)). The action is substantive” such that “better pleading will not cure Younger doctrine “applies with equal force to [both criminal it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see and] civil proceedings,” including proceedings pending in also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 family courts. Parent, 485 F. A'ppx at 503; Donkor v. City (2d Cir.1991) (“Of course, where a plaintiff is unable to allege of N.Y. Human Res. Admin. Special Servs. for Children, 673 any fact sufficient to support its claim, a complaint should F.Supp. 1221, 1224 (S.D.N.Y.1987). be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be *4 In this case, it is clear from plaintiff's complaint that productive, ... it is not an abuse of discretion to deny leave to the three conditions necessary to establish Younger abstention amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d are satisfied. First, as discussed above, there is an ongoing Cir.1993); accord, Brown v. Peters, No. 95–CV–1641, 1997 proceeding in Tompkins County Family Court concerning WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). plaintiff and the custody of his children. Dkt. No. 1 at 6. Second, “[a] state plainly has an interest in the outcome of *5 In this case, the court is precluded from adjudicating a child custody dispute adjudicated in its courts.” Grieve the claims asserted in plaintiff's complaint on his behalf v. Tamerin, 269 F.3d 149, 152–53 (2d Cir.2001). Turning and on behalf of T.R .B. due to the pending proceeding in to the third condition, “the relevant question under Younger Tompkins County Family Court, and no amendment to the is whether the state's procedural remedies could provide complaint could cure this defect. Accordingly, I recommend the relief sought not whether the state will provide the that plaintiff not be granted leave to replead.5 constitutional ruling which the plaintiff seeks.” Spargo v. N.Y. State Comm'n of Judicial Conduct, 351 F.3d 65, 79 (2d Cir.2003) (quotation marks, alterations, emphasis omitted). III. SUMMARU AND RECOMMENDATION Courts in this circuit have frequently concluded that a A review of plaintiff's application for leave to proceed IFP pending proceeding in state family court “affords ... adequate reflects that he is eligible for that status. Because all of opportunity for judicial review of [a plaintiff's] constitutional plaintiff's claims asserted both on his behalf and on behalf of claims.” Best v. City of N.Y., No. 12–CV–7874, 2014 WL T.R.B. relate to an ongoing proceeding in Tompkins County 163899, at *10 (S.D.N.Y. Jan. 15, 2014); see also Hidalgo Family Court, however, I recommend that the court abstain v. N.Y., 11–CV–5074, 2011 WL 5838494, at *3 (E.D.N.Y.21, from adjudicating any of them. Based upon the foregoing, it 2011); Reinhardt v. Mass. Dep't of Soc. Servs., 715 F.Supp. is hereby 1253, 1257 (S.D.N.Y.1989). ORDERED that plaintiff's leave to proceed in this action in Based upon the foregoing, I recommend that the court abstain forma pauperis (Dkt. No. 2) is GRANTED; and it is further from addressing any of the claims asserted in the plaintiff's hereby respectfully complaint, all of which relate directly to the proceeding pending in Tompkins County Family Court. RECOMMENDED that plaintiff's complaint be DISMISSED without leave to replead and without prejudice. may lodge written objections to the foregoing report. Such copy of this report and recommendation upon the parties in objections must be filed with the clerk of the court within accordance with this court's local rules. FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE Filed Sept. 4, 2014. APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993). All Citations Not Reported in F.Supp.3d, 2015 WL 151029 Footnotes 1 Plaintiff's complaint alludes to T.R.B.'s brother and sister, and plaintiff's IFP application indicates that plaintiff has three children. Dkt. No. 1 at 5; Dkt. No. 2 at 2. 2 Plaintiff's complaint does not disclose the age of T.R.B. Dkt. No. 1. 3 The language of that section is ambiguous, in that it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). Courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. CI. 366, 367 (Fed.Cl.2006); see also Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n. 1 (S.D.N.Y.2002). 4 Plaintiff is reminded that, although his IFP application has been granted, he will still be required to pay fees that he incurs in this action, including copying and/or witness fees. 5 It is worth noting that plaintiff is precluded from pursuing claims on behalf of his son, T.R.B., pro se. See Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990) (“[A] non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child.”); see also Fauconier v. Comm. on Special Educ., No. 02–CV–1050, 2003 WL 21345549, at *1 (S.D.N.Y. June 10, 2003). In the event my recommendation that plaintiff's complaint be dismissed without leave to replead is not adopted by the district judge, and any of the claims asserted on behalf of T.R.B. survive, plaintiff must first obtain legal representation to pursue those claims. In addition, because Tompkins County DSS is not amenable to suit, Hoisington v. Cnty. of Sullivan, 55 F.Supp.2d 212, 214 (S.D.N.Y.1999), in the event any portion of the plaintiff's complaint survives review by the district judge, I recommend that Tompkins County be substituted as a defendant in the place of Tompkins County DSS. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
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