Johnson v. Fischer

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ROBERT W. JOHNSON,

Plaintiff,

- v - Civ. No. 1:19-CV-1384

(TJM/DJS)

BRIAN FISCHER, et al,

Defendants.

APPEARANCES: OF COUNSEL:

ROBERT W. JOHNSON

Plaintiff, Pro Se

3345 Fish Avenue, Apt. 1

Bronx, New York 10469

DANIEL J. STEWART

United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

The Clerk has sent for review a civil Complaint filed by Plaintiff Robert Johnson.

Dkt. No. 2, Compl. Plaintiff has not paid the filing fee, but instead submitted a Motion to

Proceed in forma pauperis (“IFP”). Dkt. No. 1, IFP App. By separate Order, this Court

granted Plaintiff’s Application to Proceed IFP. Now, in accordance with 28 U.S.C. §

1915(e), the Court will sua sponte review the sufficiency of the Complaint.

I. DISCUSSION

A. Pleading Requirements

Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff

seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court

determines that . . . the action or appeal (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)(B). Similarly, under 28 U.S.C. § 1915A,

a court must review “a complaint in a civil action in which a prisoner seeks redress from a

governmental entity or officer or employee of a governmental entity” and must “identify

cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2)

seeks monetary relief from a defendant who is immune from such relief.” Id. at § 1915A(a)

& (b). Thus, it is a court’s responsibility to determine that a plaintiff may properly maintain

his complaint before permitting him to proceed further with his action.

In reviewing a pro se complaint, this Court has a duty to show liberality toward pro

se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and should exercise

“extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the

adverse party has been served and both parties (but particularly the plaintiff) have had an

opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis

in original) (citations omitted). Therefore, a court should not dismiss a complaint if the

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plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). Although the court should construe the

factual allegations in the light most favorable to the plaintiff, “the tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S.

at 555). “[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 ‘show[n]’–‘that the

pleader is entitled to relief.’” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). A pleading that

only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id.

at 678 (further citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, for the proposition that

Federal Rule of Civil Procedure 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation”). Allegations that “are so vague as to fail to give the

defendants adequate notice of the claims against them” are subject to dismissal. Sheehy v.

Brown, 335 Fed. Appx. 102, 104 (2d Cir. 2009).

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B. Allegations Contained in Plaintiff’s Complaint

The Complaint alleges violations of Plaintiff’s constitutional rights and rights

allegedly protected by the Patriot Act. Compl. at p. 3. More specifically, Plaintiff alleges that

he was denied review of evidence in connection with a prior federal court action he litigated -

Johnson v. Facteau, No. 9:10-CV-372 (N.D.N.Y.). Id. at p. 4. That action was resolved in

2011 by way of a settlement. Johnson v. Facteau, No. 9:10-CV-372, Dkt. No. 20. Plaintiff

now claims that material was withheld from him in that case without a valid legal basis.

Compl. at p. 4. The Complaint names over fifty defendants, but fails to make specific

allegations of wrongdoing against any Defendant in particular. See generally Compl

C. Sufficiency of the Pleading

In this case, the Complaint suffers from several deficiencies that warrant dismissal.

A. Absolute Immunity1

In actions brought under 42 U.S.C. § 1983 judges enjoy absolute immunity from suit

for actions taken in the performance of their duties. Young v. Selsky, 41 F.3d 47, 51 (2d Cir.

1994) (noting that “[j]udges enjoy absolute immunity from personal liability for ‘acts

committed within their judicial jurisdiction’”) (quoting Pierson v. Ray, 386 U.S. 547 (1967));

Hartman v. Moore, 547 U.S. 250, 261-62 (2006) (citing Imbler v. Pachtman, 424 U.S. 409,

1 The Court notes that although immunity from suit is a defense that would be raised by a defendant, the Second

Circuit has held that, for purposes of an initial review under 28 U.S.C. § 1915, a court may find that a complaint is based

on an indisputably meritless legal theory if a defense “appears on the face of the complaint,” and may validly raise such

a claim sua sponte. Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (collecting cases throughout the various Circuit Courts

of Appeal that have upheld § 1915 dismissals based upon defenses that appear on the face of the complaint). The Court

notes, as set forth below, that Plaintiff will have an opportunity to present any objections he has to this Court’s

recommendations to the assigned District Judge.

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431 (1976), for the proposition that prosecutors are absolutely immune for actions related to

the prosecutorial function).

The Complaint here names numerous judges as Defendants - George Lowe, as well

as, New York State Court Judges Lahtinen, Kavanagh, Stein, and Garry. See Compl. To the

extent, the allegations in this case bear on their official duties as judges they are barred by

absolute immunity. Young v. Selsky, 41 F.3d at 51; Bliven v. Hunt, 579 F.3d 204, 210 (2d

Cir. 2009) (“acts arising out of, or related to, individual cases before the judge are considered

judicial in nature”).

B. 11th Amendment Immunity

Dismissal is also appropriate as to a number of Defendants on sovereign immunity

grounds. Under clearly established law, the Eleventh Amendment provides states immunity

in federal court. Woods v. Rondout Valley Cent. Sch. Dist. Bd of Educ., 466 F.3d 232, 236

(2d Cir. 2006). The immunity applies both to the State itself and state agencies. Feingold v.

New York, 366 F.3d 138, 149 (2d Cir. 2004); McGinty v. New York, 251 F.3d 84, 95 (2d Cir.

2001) (“The Eleventh Amendment extends immunity not only to a state, but also to entities

considered ‘arms of the state.’”). “As a general rule, state governments and their agencies

may not be sued in federal court unless they have waived their Eleventh Amendment

immunity or there has been a valid abrogation of that immunity by Congress.” Jackson v.

Battaglia, 63 F.Supp.3d 214, 219–20 (N.D.N.Y. 2014) (citation omitted). “It is

well-established that New York has not consented to § 1983 suits in federal court and that

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§ 1983 was not intended to override a state’s sovereign immunity.” Mamot v. Bd. of Regents,

367 Fed. Appx. 191, 192 (2d Cir. 2010) (internal citations omitted). No other basis for waiver

or abrogation is set forth in the Complaint. Accordingly, claims against the following

Defendants should be dismissed on Eleventh Amendment immunity - Clinton Correctional

Facility, State of New York, Attorney General’s Office, NYSDOCCS, Auburn Correctional

Facility, State Counsel Division Litigation Bureau, Southport Correctional Facility, State of

New York Supreme Court, and Appellate Division: Third Judicial Department.

C. Section 1983 Requires Claims Against “Persons”

The Complaint also lists as Defendants Sides A and B of an audiotape. To establish

a prima facie case under 42 U.S.C. section 1983, a plaintiff must assert that “a person” acting

under color of state law deprived him of his “rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535 (1981)

(overruled on other grounds). It is evident that an audiotape cannot properly be sued under

this statute. See 1 U.S.C. § 1 (defining the word “person” to include “corporations,

companies, associations, firms, partnerships, societies, and joint stock companies, as well as

individuals”).

D. Patriot Act

Plaintiff makes an entirely conclusory assertion of violations under the Patriot Act.

Compl. at p. 3. Courts considering the question, however, have consistently found that the

statute “does not afford a private right of action.” Maitland v. Fishbein, 2017 WL 9485648,

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at *13 (E.D.N.Y. Feb. 28, 2017), report and recommendation adopted, 2017 WL 1025858

(E.D.N.Y. Mar. 16, 2017), aff’d in part, vacated in part, remanded, 712 Fed. Appx. 90 (2d

Cir. 2018) (affirming dismissal of federal causes of action) (citing cases). According, any

claims under the Patriot Act should be dismissed.

E. Statute of Limitations

As to the remaining Defendants, the Court recommends dismissing Plaintiff’s claims

as untimely. The statute of limitations for a section 1983 action in New York is three years.

Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995). The only specific claim made here is that

Plaintiff was “denied review of evidence for Northern District of New York case docket

9:10-CV-0372.” Compl. at p. 4. As noted above, that case was closed in February 2011.

Johnson v. Facteau, No. 9:10-CV-372, Dkt. No. 20. Any denial of evidence in that case,

therefore, must have taken place prior to that date which would have been over eight years

prior to Plaintiff filing this action. No explanation is offered as to why it has taken Plaintiff

so long to file this action. These claims are clearly time barred and the remainder of the

Complaint should be dismissed as untimely. Walker v. Cuomo, 2012 WL 4490760, at * 2-3

(E.D.N.Y. Sept. 27, 2012).

“Ordinarily, 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.’” Bruce v. Tomkins Cty. Dep’t of Soc. Servs.

ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark,

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927 F.2d 698, 704-05 (2d Cir.1991)). Here, however, where the grounds for dismissal offer

no basis for curing the defects in the pleading, leave to amend would be futile. Kunz v.

Brazill, 2015 WL 792096, at *3 (N.D.N.Y. Feb. 25, 2015).

Il. CONCLUSION

WHEREFORE, it is hereby

RECOMMENDED, that Plaintiff's Complaint (Dkt. No. 2) be DISMISSED; and it

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ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation

and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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

(14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d

85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.

1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).

“| Date: February 14, 2020

Albany, New York

(ay ary

Dain Ste

U.S“Magistrate Judge

> ‘If you are proceeding pro se and are 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 the Report-

Recommendation and Order was mailed to you to serve and file objections. FED. R. Crv. 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).

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