Tabor v. Baye

• Court: District Court, N.D. New York
• Decided: June 22, 2022
• Docket: 6:22-cv-00348
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

ALEX D. TABOR,

Plaintiff, 6:22-CV-0348 (DNH/ML) v.

POLICE OFFICER BAYE, Utica Police Dep’t,

Defendant. _____________________________________________

APPEARANCES: OF COUNSEL:

ALEX D. TABOR Plaintiff, Pro Se 663 Bleeker Street Utica, New York 13501

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION The Clerk has sent this pro se Complaint (Dkt. No. 1) together with an application to proceed in forma pauperis (Dkt. No. 2) to the Court for review. For the reasons discussed below, I grant Plaintiff’s in forma pauperis application (Dkt. No. 2) and recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed in its entirety with leave to amend. I. BACKGROUND Liberally construed,1 Plaintiff’s Complaint—which is a form complaint pursuant to 42 U.S.C. § 1983—asserts that his rights were violated by Defendant Police Officer Baye (“Defendant”) of the Utica Police Department. (See generally Dkt. No. 1.) The Complaint appears to allege that at some point in time, Plaintiff was “alienated by Utica New York Police

Officers,” which violated his rights. (Id. at 2.) Based on these factual allegations, Plaintiff appears to assert the following three claims: (1) a claim of alienation, (2) a claim that he was denied freedom of information, and (3) a claim of judicial and medical negligence. (Id. at 3.) As relief, Plaintiff seeks monetary relief of an unspecified amount. (Id. at 4.) The Complaint is a series of incomplete sentences that are largely indecipherable and devoid of factual assertions. (See generally, Dkt. No. 1.) II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS “When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s in

1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). 2 The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis 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”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff’s application to proceed in forma pauperis is granted.3

III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted). “In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.

3 Plaintiff is reminded that, although his application to proceed in forma pauperis has been granted, he is still required to pay fees that he may incur in this action, including copying and/or witness fees. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff’s complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff

paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99- MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); 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 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”). IV. ANALYSIS In addressing the sufficiency of a plaintiff’s complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes of action be dismissed. Although Plaintiff completes his Complaint on a form complaint for actions pursuant to 42 U.S.C. § 1983, the allegations contained in the Complaint are merely a series of legal jargon that form incomplete sentences. By way of example, the entirety of the factual allegations contained in the Complaint assert as follows: I was alienated by Utica New York police officers violating my liberty, breach of duty of care, denial of acess to medical, refusal to take reports of theft and robbery, refused to allow me to speak with a supervisor, and freedom of information. (Dkt. No. 1 at 2 [errors in original].) In addition, Plaintiff’s first cause of action reads: Alienation – not contacting my emergency medical violation of liberty – no reason other than here say due process. (Dkt. No. 1 at 3 [errors in original].) As the Complaint is currently drafted, the Court is unable to meaningfully analyze, whether, and to what extent, Plaintiff has pleaded any colorable claim against Defendant. (See generally Dkt. No. 1.) Plaintiff’s Complaint places an unjustified burden on the Court and, ultimately, on Defendant “‘to select the relevant material from a mass of verbiage.’” Salahuddin v. Cuomo, 861 F.2d 40, 41-42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281, at 365 (1969)). As a result, I recommend the Complaint be dismissed as frivolous. See, e.g., Gillich v. Shields, 18-CV-0486, 2018 WL 2926299 (N.D.N.Y. Apr. 30, 2018) (Peebles, M.J.), report and recommendation adopted by 2018 WL 2926302, at *3 (N.D.N.Y. Jun. 8, 2018) (D'Agostino, J.); Canning v. Hofmann, 15-CV-0493, 2015 WL 6690170, at *5 (N.D.N.Y. Nov. 2, 2015) (Hurd, J.) (“Under these circumstances, having found that none of the allegations in Plaintiff’s meandering

and indecipherable Complaint raise a cognizable cause of action, the Court concludes that the Complaint fails to state a claim upon which relief may be granted and is subject to dismissal.”); see also Salahuddin, 861 F.2d at 42 (“Dismissal [for failure to comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure] . . . is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.”). V. OPPORTUNITY TO AMEND Generally, a court should not dismiss claims contained in 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.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). In this case, it is not clear whether better pleading would permit Plaintiff to assert a cognizable cause of action against Defendant. Out of deference to Plaintiff’s pro se status, however, I recommend that Plaintiff be granted leave to amend the Complaint.

If Plaintiff chooses to avail himself of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on which he relies to support any legal claims asserted. Fed. R. Civ. P. 8(a). In addition, the amended complaint must include allegations reflecting how the individual(s) named as Defendant(s) is involved in the allegedly unlawful activity. Finally, Plaintiff is informed that any such amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”

(internal quotation marks omitted)). ACCORDINGLY, it is ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff’s Complaint (Dkt. No. 1) as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.4 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.> Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: June 22, 2022 Binghamton, New York f Miroslav Lovric U.S. Magistrate Judge

4 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). > If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).