Altimonte v. Leboz

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

JOHN JAMES ALTIMONTE,

Plaintiff,

6:21-cv-680

v. (BKS/TWD)

DR. RONALD M. LEBOZ, CAROL ALTIMONTE,

JOSEPH PAUL ALTIMONTE,

Defendants.

_____________________________________________

APPEARANCES:

JOHN JAMES ALTIMONTE

Plaintiff, pro se

2643 Edgewood Road

Utica, NY 13501

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

John James Altimonte (“Plaintiff”) filed an action against Dr. Ronald M. Leboz, Carol

Altimonte, and Joseph Paul Altimonte (collectively, “Defendants”). (Dkt. No. 5.) Currently

before the Court is Plaintiff’s application to proceed in forma pauperis (“IFP Application”).

(Dkt. No. 2.) A court may grant 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). After reviewing Plaintiff’s IFP

Application (Dkt. No. 2), the Court finds Plaintiff meets this standard. Therefore, his IFP

Application is granted. 1

1 Plaintiff should note that, although his application proceed in forma pauperis has been

granted, he will still be required to pay fees that he may incur in this action, including copying

and/or witness fees.

28 U.S.C. § 1915(e) 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 – . . . (B) 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)(B).2 Additionally, when reviewing a complaint, the Court may also look to the

Federal Rules of Civil Procedure (“Federal Rules”).

To survive dismissal for failure to state a claim, a complaint must plead enough facts to

state a claim 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). While Rule 8(a) of the Federal Rules of Civil

Procedure, which sets forth the general rules of pleading, “does not require detailed factual

allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id.

In determining whether a complaint states a claim upon which relief may be granted, “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. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)

(citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in

a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

A pro se litigant’s pleadings are held to a less strict standard than attorney drafted

pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal

2 To determine whether an action is frivolous, a court must look to see whether the

complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989).

litigation context, pro se litigants are held to a lesser pleading standard than other parties.”).

Because Plaintiff is proceeding pro se, the Court construes his pleadings “to raise the strongest

arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d

Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “does not exempt a

[pro se litigant] from compliance with relevant rules of procedural and substantive law.”

Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

Moreover, a court should not dismiss a pro se complaint “without giving leave to amend

at least once when a liberal reading of the complaint gives any indication that a valid claim might

be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and

internal quotation marks omitted). However, an opportunity to amend is not required 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).

Generally, Plaintiff claims he is the victim of human trafficking:

What Dr. Leboz an his gang have done to my Mother, they are

now doing to me. It is human trafficking, of 1st my Mother—and

now me. And these forms are only more torture. So I deserve—

No Protection!

(Dkt. No. 5 at 5.3) He further suggests that he lost his mother, his career, his well-being, and is

“being forced from [his] home.” Id. at 7. The complaint references a “gang assault” and a

“violation” of 18 U.S.C. §§ 241, 242, “since 2011-continues!” Id. at 8. According to Plaintiff,

“This never ends because no one has or will—ask any of the Gang Members any Questions!” Id.

3 Page references to documents identified by docket number refer to the numbers

assigned by the CM/ECF docketing system maintained by the Clerk’s Office. Unless otherwise

indicated, excerpts from the record are reproduced exactly as they appear in the original and

errors in spelling, punctuation, and grammar have not been corrected.

Here, the collection of allegations in Plaintiff’s complaint do not provide any indication

of the causes of action Plaintiff intends to assert against Defendants or whether this Court has

jurisdiction over the action. Rule 8 of the Federal Rules provides that a pleading must contain:

(1) a short and plain statement of the grounds for the court’s

jurisdiction . . . ;

(2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the

alternative or different types of relief.

Fed. R. Civ. P. 8(a). Rule 8’s purpose “is to give fair notice of the claim being asserted so as to

permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate

defense.” Hudson v. Artuz, No. 95-CIV. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30,

1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).

Moreover, Rule 10 of the Federal Rules provides, in part:

(b) Paragraphs; Separate Statements. A party must state its claims

or defenses in numbered paragraphs, each limited as far as

practicable to a single set of circumstances. . . .

Fed. R. Civ. P. 10(b). Rule 10’s purpose is to “provide an easy mode of identification for

referring to a particular paragraph in a prior pleading[.]” Sandler v. Capanna, Civ. A. No. 92-

4838, 1992 WL 392597, at *3 (E.D. Pa. Dec. 17, 1992) (citation omitted).

A complaint that does not comply with these Rules “presents far too heavy a burden in

terms of defendants’ duty to shape a comprehensive defense and provides no meaningful basis

for the Court to assess the sufficiency of [the plaintiff’s] claims,” and may properly be dismissed

by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). “Dismissal, however, 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.” Artuz, 1998 WL

832708, at *2 (internal quotation marks omitted).

Here, the Court recommends the complaint be dismissed because it is not acceptable

under Rules 8 and 10 of the Federal Rules and Plaintiff’s claims are entirely unclear.4 However,

considering his pro se status, the Court also recommends Plaintiff be given an opportunity to

amend the complaint to comply with the basic pleading requirements discussed above.5 See

Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).

ACCORDINGLY, it is hereby

ORDERED that Plaintiff’s IFP Application (Dkt. No. 2) is GRANTED; and it is further

RECOMMENDED that Plaintiff’s complaint (Dkt. No. 5) be DISMISSED IN ITS

ENTIRETY AND WITH LEAVE TO AMEND, and it is further

4 Insofar as Plaintiff intended to rely on 18 U.S.C. §§ 241, 242, the Court notes these

statutes are criminal statutes, which do not give rise to civil liability or authorize a private right

of action. See Storm-Eggink v. Gottfried, 409 F. App’x 426, 427 (2d Cir. 2011) (“[T]here is no

private right of action under [18 U.S.C.] § 242[.]”); Robinson v. Overseas Military Sales Corp.,

21 F.3d 502, 511 (2d Cir. 1994) (affirming dismissal of plaintiff’s claim under 18 U.S.C. § 242

because this “criminal statute . . . do[es] not provide private causes of action”); Muhammad v.

Smith, No. 3:13-CV-760 (MAD/DEP), 2014 WL 3670609, at *7 (N.D.N.Y. July 23, 2014) (“18

U.S.C. § 241 is a criminal statute which does not create a private cause of action.”).

5 Specifically, any amended complaint must comply with Rules 8 and 10 of the Federal

Rules. Any such amended complaint must clearly set forth facts that give rise to the claims,

including the dates, times, and places of the alleged underlying acts, and each individual who

committed each alleged wrongful act. In addition, the revised pleading should allege facts

demonstrating the specific involvement of any of the named defendants in the constitutional

deprivations alleged in sufficient detail to establish that they were tangibly connected to those

deprivations. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). 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.”).

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-

Recommendation along with a copy of the unpublished decisions cited herein in accordance with

the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

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. 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)); 28 U.S.C. § 636(b)(1)

(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

Dated: July 21, 2021

Syracuse, New York A DD 4.

Theérése Wiley Dancks

United States Magistrate Judge

® If you are proceeding pro se and are served with this Order and Report-

Recommendation by mail, three additional days will be added to the fourteen-day period,

meaning that you have seventeen days from the date the Order and Report-Recommendation was

mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the 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. 6(a)(1)(C).

1998 WL 832708 By Judge Rakoff's Order dated April 14, 1998, this case was

referred to me for general pretrial purposes and for a Report

Only the Westlaw citation is currently available.

and Recommendation on any dispositive motion. Presently

United States District Court, S.D. New York.

pending is defendants' renewed motion to dismiss. Plaintiff

Theodore HUDSON, Plaintiff, filed a reply on July 6, 1998. For the reasons discussed

v. below, plaintiff's complaint is dismissed without prejudice,

Christopher ARTUZ, Warden Philip and plaintiff is granted leave to replead within thirty (30) days

of the date of the entry of this order.

Coombe, Commissioner Sergeant

Ambrosino Doctor Manion Defendants.

No. 95 CIV. 4768(JSR). FACTS

|

Nov. 30, 1998. Plaintiff alleges that he was assaulted by four inmates in the

Green Haven Correctional Facility mess hall on March 14,

Attorneys and Law Firms 1995. (Complaint at 4.) He alleges that he was struck with

a pipe and a fork while in the “pop room” between 6:00

Mr. Theodore Hudson, Great Meadow Correctional Facility,

p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends

Comstock.

that the attack left him with 11 stitches in his head, chronic

Alfred A. Delicata, Esq., Assistant Attorney General, New headaches, nightmares, and pain in his arm, shoulder, and

York. back. (Id.) Plaintiff also states that Sergeant Ambrosino

“failed to secure [the] area and separate” him from his

attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz

is that he “fail [sic] to qualify as warden.” (Complaint at

MEMORANDUM AND ORDER

4.) Plaintiff names Commissioner Coombes as a defendant,

BUCHWALD, Magistrate J. alleging Coombes “fail [sic] to appoint a qualified warden

over security.” (Amended Complaint at 5.) Plaintiff further

*1 Plaintiff Theodore Hudson filed this pro se action alleges that Dr. Manion refused to give him pain medication.

pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's (Complaint at 5.) Plaintiff seeks to “prevent violent crimes”

complaint alleges defendants violated his constitutional rights and demands $6,000,000 in damages. (Amended Complaint

while he was an inmate at Green Haven Correctional at 5.)

Facility.1 Plaintiff's complaint was dismissed sua sponte by

Judge Thomas P. Griesa on June 26, 1995 pursuant to 28 Defendants moved to dismiss the complaint, arguing that: (1)

U.S.C. § 1915(d). On September 26, 1995, the Second Circuit the Eleventh Amendment bars suit against state defendants

Court of Appeals vacated the judgment and remanded the case for money damages; (2) the plaintiff's allegations fail to state

to the district court for further proceedings. a claim for a constitutional violation; (3) the defendants are

qualifiedly immune from damages; and (4) plaintiff must

1 Plaintiff is presently incarcerated at Sullivan exhaust his administrative remedies before bringing this suit.

Correctional Facility.

The case was reassigned to Judge Barbara S. Jones on

DISCUSSION

January 31, 1996. Defendants moved to dismiss the complaint

pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996. I find that plaintiff's complaint runs afoul of Rules 8 and

Thereafter, the case was reassigned to Judge Jed S. Rakoff 10 of the Federal Rules of Civil Procedure and dismiss the

on February 26, 1997. On February 26, 1998, Judge Rakoff complaint without prejudice and with leave to amend. Federal

granted defendants' motion to dismiss, but vacated the Rule 8 requires that a complaint contain “a short and plain

judgment on April 10, 1998 in response to plaintiff's motion statement of the claim showing that the pleader is entitled to

for reconsideration in which plaintiff claimed that he never relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to

received defendants' motion to dismiss.

prepare an adequate defense.” Powell v. Marine Midland cases in which the court dismisses a pro se complaint for

Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. failure to comply with Rule 8, it should give the plaintiff leave

Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin to amend when the complaint states a claim that is on its

v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d

“principal function of pleadings under the Federal Rules is to Cir.1995).

give the adverse party fair notice of the claim asserted so as

to enable him to answer and prepare for trial”). In determining whether a nonfrivolous claim is stated, the

complaint's allegations are taken as true, and the “complaint

*2 Rule 10 of the Federal Rules of Civil Procedure requires, should not be dismissed for failure to state a claim unless

inter alia, that the allegations in a plaintiff's complaint be it appears beyond doubt that the plaintiff can prove no set

made in numbered paragraphs, each of which should recite, of facts in support of his claim which would entitle him to

as far as practicable, only a single set of circumstances. relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,

Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule 2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to

10 also requires that each claim upon which plaintiff seeks be liberally construed in his favor when determining whether

relief be founded upon a separate transaction or occurrence. he has stated a meritorious claim. See Haines v. Kerner, 404

Id.2 The purpose of Rule 10 is to “provide an easy mode U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it

of identification for referring to a particular paragraph in a is difficult to determine the actual substance of the plaintiff's

prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL complaint, outright dismissal without leave to amend the

392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright & complaint is generally disfavored as an abuse of discretion.

A. Miller, Federal Practice and Procedure, § 1323 at 735 See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of

(1990)). New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.

Mar.12, 1997).

2 Rule 10 states:

Here, plaintiff's pro se complaint fails to satisfy the

(b) Paragraphs; Separate Statements. All

requirements of Federal Rules 8 and 10. The complaint is

averments of claim or defense shall be made in

often illegible and largely incomprehensible, scattering what

numbered paragraphs, the contents of each of

appear to be allegations specific to plaintiff within a forest

which shall be limited as far as practicable to a

of headnotes copied from prior opinions. Defendants have

statement of a single set of circumstances; and

answered with a boilerplate brief, which is perhaps all a

a paragraph may be referred to by number in all

defendant can do when faced with such a complaint. The

succeeding pleadings. Each claim founded upon

Court is left with an insurmountable burden in attempting to

a separate transaction or occurrence and each

make a reasoned ruling on such muddled pleadings.

defense other than denials shall be stated in a

separate count or defense whenever a separation

*3 Although plaintiff's complaint is substantially

facilitates the clear presentation of the matters set

incomprehensible, it appears to plead at least some claims

forth.

that cannot be termed frivolous on their face. For example,

A complaint that fails to comply with these pleading rules plaintiff clearly alleges that inmates assaulted him and that

“presents far too heavy a burden in terms of defendants' Dr. Manion refused to provide him medical attention. He also

duty to shape a comprehensive defense and provides no appears to assert that Sergeant Ambrosino failed to protect

meaningful basis for the Court to assess the sufficiency of” him from the attack or take steps to prevent future attacks.

a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355 (Plaintiff's Reply at 5). It is well established that an inmate's

(N.D.N.Y.1996). It may therefore be dismissed by the court. constitutional rights are violated when prison officials act

Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When with deliberate indifference to his safety or with intent to

a complaint does not comply with the requirement that it cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d

be short and plain, the court has the power to, on its own Cir.1991). It is similarly well established that an inmate's

initiative, ... dismiss the complaint”). Dismissal, however, is constitutional rights are violated when a prison doctor denies

“usually reserved for those cases in which the complaint is his request for medical care with deliberate indifference to

so confused, ambiguous, vague, or otherwise unintelligible the inmate's serious medical needs. Estelle v. Gamble, 429

Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. Plaintiff's complaint shall contain the facts specific to the

incidents plaintiff alleges occurred, and not any facts relating

1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although

to any case that has been decided previously by a court of law.

plaintiff provides few facts to support his allegations, I

Plaintiff's complaint shall also contain a clear statement of the

disagree with defendants' assertion that outright dismissal is

relief he seeks in addition to monetary damages.

appropriate because it “appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.” Defendant's Memorandum at 5 (quoting

Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d CONCLUSION

80 (1957)).

For the reasons set forth above, plaintiff's complaint is

Because plaintiff's complaint does not comply with Rules 8 dismissed without prejudice, and plaintiff is granted leave to

and 10, it is hereby dismissed without prejudice, and plaintiff replead within thirty (30) days of the date of the entry of this

is granted leave to replead within thirty (30) days of the date Order.

of the entry of this Order. In drafting his second amended

complaint, plaintiff is directed to number each paragraph and IT IS SO ORDERED.

order the paragraphs chronologically, so that each incident in

which he alleges a constitutional violation is described in the

All Citations

order that it occurred. Plaintiff is also directed to specifically

describe the actions of each defendant that caused plaintiff Not Reported in F.Supp.2d, 1998 WL 832708

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

1992 WL 392597 audition by School director Capanna. Capanna did not offer

Sandler a position at the School at that time. Five years later,

Only the Westlaw citation is currently available.

in 1991, Sandler reapplied to the School. For the stated reason

United States District Court, E.D. Pennsylvania.

that he believed that Sandler was unable to communicate with

Saul Zalman SANDLER children, Capanna again refused to hire Sandler.2 Sandler

v. alleges that since 1991, none of the School's employees have

Robert CAPANNA. been of male Jewish descent and that Capanna's decision

not to hire him was the result of “a definite predisposition

Civ.A. No. 92–4838. of discrimination against male Jews ... by Capanna.” See

| Complaint.

Dec. 17, 1992.

Attorneys and Law Firms

I. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)

Saul Zalman Sandler, pro se.

Capanna first urges dismissal of Sandler's complaint pursuant

Michael G. Tierce, Schnader, Harrison, Segal & Lewis, to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon

Philadelphia, for defendant. which relief can be granted. In deciding such a motion, I must

view all factual assertions in the complaint and all reasonable

inferences drawn from them as true. See Kehr Packages, Inc.

MEMORANDUM v. Fidelcor, Inc., 926 F.2d 1406, 1410 (3d Cir.), cert. denied,

111 S.Ct. 2839 (1991). Only if Sandler's complaint alleges no

PADOVA, District Judge. set of facts upon which relief can be granted may I dismiss

the complaint. See id.

*1 Proceeding pro se, plaintiff Saul Zalman Sandler initiated

this action against defendant Robert Capanna, Director

In evaluating the adequacy of this particular complaint,

of the Settlement Music School, alleging that Capanna

however, I must keep two additional factors in mind.

discriminatorily failed to hire him because of his religion and

First, I must consider that Sandler is a pro se litigant and

gender. Capanna has moved to dismiss Sandler's complaint

that complaints prepared by such litigants are subject to

with prejudice for the following reasons: (1) failure to

less stringent standards than complaints filed by licensed

state a claim, Fed.R.Civ.P. 12(b)(6); (2) failure to set

attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972);

forth the complaint in separated and numbered paragraphs,

United States v. Day, 969 F.2d 39, 42 (3d Cir.1992). Second,

Fed.R.Civ.P. 10(b); (3) failure to set forth grounds for this

because the complaint appears to involve a civil rights claim

Court's jurisdiction, Fed.R.Civ.P. 8(a)(1); and (4) lack of

in that Sandler complains of discrimination based upon his

subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). Sandler has

religion and gender, I must review the complaint to ensure

not filed a response to Capanna's motion.1 For the following

that it contains specific factual allegations in support of his

reasons, I will deny Capanna's motion but order Sandler to claim for relief. See, e.g., Kauffman v. Moss, 420 F.2d 1270,

amend his complaint. 1275–76 (3d Cir.1970), cert. denied, 400 U.S. 846 (1970).

*2 Capanna contends that Sandler's two page, narrative

BACKGROUND complaint fails to state a cause of action because it does not

specifically plead any recognized law upon which this court

The following pertinent factual allegations can be found in or could base relief from the alleged acts of discrimination. I

inferred from Sandler's complaint. As early as 1978, Sandler disagree. Sandler's complaint “need only state a set of facts

was told by a dean of the faculty of the Settlement Music giving rise to a claim, and not the legal theory behind the

School (the “School”) that he was qualified to teach violin at claim, so long as the defendant has enough information to

the School. In 1981, the School offered Sandler a part-time frame an answer and to commence discovery.” Barlow v.

position as a music teacher, which he was unable to accept due Pep Boys, Inc. 625 F.Supp. 130, 132 (E.D.Pa.1985) (citing

arguably pleads sufficient factual allegations to state claims minimum, these two documents indicate that Sandler's claim

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. is more than likely based upon Title VII. It is not too much to

§§ 2000e et seq. (West 1981) (“Title VII”), and/or 42 conclude that section 1981 is also implicated. Finally, because

U.S.C.A. § 1981 (West Supp.1992) and that it provides I do agree that there is some ambiguity, I will require Sandler

defendant with enough information to frame an answer and to amend his complaint to state specifically the legal theories

conduct discovery. upon which he bases his right to recovery. As this ambiguity

can be easily cured by amendment, I find that dismissal

To state a claim under Title VII, Sandler must plead that (1) would be unduly harsh, and I will accordingly deny Capanna's

he belongs to a class entitled to protection under Title VII and motion on this ground.

(2) in refusing to hire him, Capanna treated him differently

from others similarly situated who were not members of *3 As an alternative ground for dismissal under Fed.R.Civ.P.

the protected class. See Barlow, 625 F.Supp. at 132 (citing 12(b)(6), Capanna argues that Sandler failed to aver that

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 he exhausted his administrative remedies before filing the

(1973)). In his complaint, Sandler alleges that although the instant action. Under Title VII, a plaintiff must file a charge

School had vacant positions for violin teachers and that with the EEOC or, in Pennsylvania, with the Pennsylvania

he was qualified to teach violin, Capanna refused to hire Human Relations Commission (“PHRC”), before bringing

him solely because he is a Jewish male. Discrimination in suit in federal court. See Trevino–Barton v. Pittsburgh Nat'l

employment based upon religion and gender are prohibited Bank, 919 F.2d 874, 878 (3d Cir.1990). If a charge filed

under section 703(a) of Title VII, 42 U.S.C. § 2000e–2(a). I with the EEOC or PHRC is dismissed, or the agency has

therefore conclude that Sandler's complaint states a cause of not filed an action within 180 days of the filing of the

action under Title VII. charge, administrative remedies are deemed exhausted and

the plaintiff may file suit in federal court. See 42 U.S.C.A.

Sandler's complaint also states a cause of action under § 2000e–5(f). Sandler attached to his complaint a “Notice of

42 U.S.C.A. § 1981, which “prohibits intentional racial Right to Sue” form from the EEOC, stating that the EEOC was

discrimination in making and enforcing contracts and in terminating further processing of a charge filed by Sandler

securing ‘equal benefits of all laws and proceedings.’ ” with the Commission more than 180 days earlier. Although

Barlow, 625 F.Supp. at 133 (quoting 42 U.S.C. § 1981). In the form does not expressly state the factual allegations

addition to the elements required to state a cause of action involved in the charge or against whom the charge was

under Title VII, discriminatory intent must be alleged to state made, I note that it does contain a notation that a copy

a cause of action under section 1981. See Croker v. Boeing was sent to the Settlement Music School. Viewed in the

Co. (Vertol Div.), 662 F.2d 975, 989 (3d Cir.1981). Averments light most favorable to Sandler, I will infer that the charge

that Capanna's discriminatory conduct was “willful and referred to in the form involved the occurrence complained

intentional” and that none of the School's employees as of of in Sandler's complaint. Accordingly, I find that Sandler's

November 1991 were males of Jewish descent satisfy this complaint contains sufficient information with which to

requirement. See Complaint. indicate that he has exhausted his administrative remedies.

I will therefore deny Capanna's motion to dismiss Sandler's

Sandler's complaint also provides sufficient information from complaint pursuant to Fed.R.Civ.P. 12(b)(6).

which Capanna can frame an answer and conduct discovery.

In addition to the foregoing analysis demonstrating that

Sandler's complaint states causes of action under the Title VII

II. Motion to Dismiss Under Fed.R.Civ.P. 10(b)

and section 1981, I also note that attached to his complaint is

a “Notice of Right to Sue” form from the Equal Employment Capanna also requests that I dismiss Sandler's complaint

Opportunity Commission (“EEOC”). This form indicates for failure to comply with Fed.R.Civ.P. 10(b). Rule 10(b)

that Sandler has filed with the EEOC a charge under Title provides that “all averments of a claim or defense shall be

VII and that the EEOC will not process the charge any made in numbered paragraphs....” The purpose behind this

further. I find that the factual allegations in the complaint, Rule 10(b) is to “provide an easy mode of identification

read in conjunction with the legal inferences fairly drawn for referring to a particular paragraph in a prior pleading or

from this form, provide Capanna with sufficient information for cross-referencing within a single pleading.” 5 Charles A.

Civil § 1323 at 735 (1990). Capanna argues that Sandler's failure to comply with Fed.R.Civ.P. 12(b)(1).

complaint violates this rule because it is essentially a narrative

document comprised of two unnumbered paragraphs. I agree An appropriate order follows.

with Capanna that, as written, the complaint does not provide

defendant with a reasonable mode of reference for future

pleadings. I will therefore order that Sandler amend his ORDER

complaint to place each allegation into a separate paragraph

pursuant to Rule 10(b). As Sandler is proceeding pro se, AND NOW, this 9th day of December, 1992, upon

however, I will not dismiss his complaint for this reason. consideration of defendant's Motion to Dismiss the Complaint

(Docket No. 2) and all papers filed in support thereof, it is

hereby ORDERED that:

III. Motion to Dismiss Under Fed.R.Civ.P. 8(a)(1) 1. Defendant's motion to dismiss is DENIED for the reasons

stated in the accompanying Memorandum.

Capanna next contends that Sandler's complaint should

be dismissed for failure to satisfy the requirements of

2. Within twenty (20) days from the date of this Order,

Fed.R.Civ.P. 8(a)(1). Rule 8(a)(1) requires that complaints

plaintiff shall file with the Clerk of Court and serve upon

contain a “short and plain statement of the grounds upon

opposing counsel an amended complaint in accordance with

which the court's jurisdiction depends.” This jurisdictional

the accompanying Memorandum. Specifically, plaintiff shall:

prerequisite, however, is satisfied where the party seeking

(a) state with particularity each and every legal theory upon

federal jurisdiction asserts a substantive claim under a federal

which his claim for relief is based and (b) reorganize his

statute. See Chasis v. Progress Mfg. Co., 382 F.2d 773, 776

complaint so that each and every factual and legal allegation

(3d Cir.1967). As I discussed above, Sandler has arguably

are set forth in separate, numbered paragraphs.

asserted substantive claims under Title VII and 42 U.S.C.A.

§ 1981. Therefore, I find that Sandler's complaint meets the

3. Within twenty (20) days from the date plaintiff serves his

intent of Fed.R.Civ.P. 8(a)(1) and will deny Capanna's motion

amended complaint, defendant shall file and serve his answer

to dismiss based upon this ground.

to said amended complaint.

1 Sandler has sent a letter to the Court, urging that

IV. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1)

Capanna's motion be denied. There is no indication,

*4 Lastly, Capanna seeks to dismiss the complaint for lack of however, that this document was filed with the

subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Clerk of Court or served upon opposing counsel,

To grant a motion to dismiss under Rule 12(b)(1), I must find as required by Fed.R.Civ.P. 5(a), (d) and (e).

that the complaint is legally insufficient. See Kehr, 926 F.2d Therefore, I will not consider it as a responsive

at 1408. Capanna argues that Sandler's complaint is legally pleading.

insufficient because Sandler failed to plead any federal law 2 Sandler alleges that the School is open to all ages,

upon which this Court could base its jurisdiction. I reject

not just to children.

Capanna's argument. As discussed above, Sandler arguably

asserts claims under Title VII and 42 U.S.C. § 1981. The

jurisdiction of this court is, therefore, proper because a federal All Citations

question has been raised. See 28 U.S.C. § 1331. Accordingly, Not Reported in F.Supp., 1992 WL 392597

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

2014 WL 3670609 claims that, through his “unalienated rights under UCC 1–

207(308),” he is “entitled to any Interpleted Funds relative

Only the Westlaw citation is currently available.

to JAMIL ABDUL MUHAMMAD, and the defendant is

United States District Court,

determined to be Barred from any collection of my alleged

N.D. New York.

debt from JAMIL ABDUL MUHAMMAD relating to Jamil

Jamil Abdul MUHAMMAD, Plaintiff, Abdul Muhammad and defendant had in no ‘CLAIM IN

v. FACT.’ “ Id. at 5.

Judge Martin E. SMITH; Jason White, Assistant

From other submissions submitted by Plaintiff, it appears

District Attorney; Broome County Courts, 6th

that Plaintiff was sentenced by Broome County Court Judge

District; American Bar Association; United States

Martin E. Smith, a named Defendant, based upon a plea of

of America; and State of New York, Defendants.

guilty entered in that court. See Dkt. No. 7 at 2. Plaintiff

appears to allege that, as a result of those proceedings, Judge

No. 3:13–cv–760 (MAD/DEP).

Smith is guilty of kidnapping, and is liable for conspiracy

|

to violate his civil rights in violation of 18 U.S.C. § 241.

Signed July 23, 2014.

See id. Further, Plaintiff makes vague references to a clerk in

Attorneys and Law Firms Binghamton named “Karen,” and claims that she and other

Defendants have placed him in imminent harm. See Dkt. No.

Jamil Abdul Muhammad, Albion, NY, pro se. 21 at 4–5. Plaintiff asks the Court to award him “the dismissal

of said charges” and to release him “by implying said ‘habeas

corpus' granting [him] immediate release of confinement[.]”

MEMORANDUM–DECISION AND ORDER Id. at 5.

MAE A. D'AGOSTINO, District Judge. In a Report, Recommendation, and Order, Magistrate Judge

Peebles granted Plaintiff's motion to proceed in forma

I. INTRODUCTION pauperis and then conducted an initial review of the

complaint. See Dkt. No. 19. Magistrate Judge Peebles noted

*1 Plaintiff, who is currently a New York State prisoner that Plaintiff's complaint failed to meet the minimal pleading

but was not at the time this action was filed, commenced standards set forth in Rule 8 of the Federal Rules of Civil

this civil rights action asserting claims against a sitting Procedure, as well as Twombly and its progeny. See id. at 7. In

judge, an assistant district attorney, a county court, and the light of his pro se status, however, Magistrate Judge Peebles

American Bar Association. See Dkt. No. 1. In an October considered Plaintiff's subsequent filings to determine if he has

16, 2013 Report, Recommendation, and Order, Magistrate set forth a plausible claim against any named Defendant. See

Judge Peebles conducted an initial review of the complaint id. at 8.

and recommended that the complaint be dismissed, with leave

to replead only as to any claims asserted against Defendant Magistrate Judge Peebles first found that Defendants Smith

American Bar Association. See Dkt. No. 19. and White are entitled to absolute immunity because

Plaintiff's claims against them are associated with his

Currently before the Court is Magistrate Judge Peebles' prosecution in Broome County. See id. at 8–9. Further,

Report, Recommendation, and Order and Plaintiff's the report found that Plaintiff's claims brought pursuant

objections thereto. to 18 U.S.C. § 241 should be dismissed because it is a

criminal statute that does not give rise to a private cause of

action. See id. at 9 n. 6 (citations omitted). Next, Magistrate

Judge Peebles concluded that Plaintiff's claims against the

II. BACKGROUND

Broome County Courts must be dismissed because they are an

Plaintiff's complaint and his many subsequent filings are extension of the state, immune from suit under the Eleventh

largely unintelligible. In his complaint, Plaintiff identifies Amendment. See id. at 10. Thereafter, Magistrate Judge

himself as a “Moor/Sovereign/a Freeman On The Land/ a Peebles found that the Court should dismiss Plaintiff's claims

because Plaintiff failed to allege any facts to plausibly suggest correctional officers and other prison

that Defendant ABA is a state actor, or that it acted under color officials in order to extort their release

of state law when allegedly violating Plaintiff's rights. See from prison. Adherents of this scheme

id. at 10–11. Finally, Magistrate Judge Peebles recommended also advocate that inmates copyright

that the Court dismiss all claims with prejudice, except those their names to justify filing liens

asserted against Defendant ABA. See id. at 12–13. against officials using their names in

public records such as indictments or

*2 Currently before the Court are Magistrate Judge court papers.

Peebles Report, Recommendation, and Order, and Plaintiff's

objections thereto. Additionally pending before the Court

are several letter motions, along with an amended Id. (citation omitted).1

complaint Plaintiff filed after the issuance of the Report,

Recommendation, and Order.

1 The Court notes that Plaintiff was convicted of

Falsifying Business Records in the First Degree.

III. DISCUSSION Plaintiff also apparently adheres to the Redemptionist theory

regarding the use of capital letters:

A. Redemptionist and sovereign citizen theories

Plaintiff's assertions appear to be based, at least in part, on

the “redemptionist” theory or the related “sovereign citizen” Redemptionists claim that by a birth

theory, which are frivolous legal theories that have been certificate, the government created

consistently rejected by federal courts. See Monroe v. Beard, strawmen out of its citizens. A person's

536 F.3d 198, 203 n. 4 (3d Cir.2008). The United States Court name spelled in English, that is with

of Appeals for the Third Circuit explained: initial capital letters and small letters,

represents the real person, that is,

the flesh and blood person. Whenever

“Redemptionist” theory ... propounds a person's name is written in total

that a person has a split personality: capitals, however, as it is on a birth

a real person and a fictional certificate, the Redemptionists believe

person called the “strawman.” The that only the strawman is referenced,

“strawman” purportedly came into and the flesh and blood person is not

being when the United States went involved.

off the gold standard in 19[3]3, and,

instead, pledged the strawman of its

citizens as collateral for the country's McLaughlin v. CitiMortqage, Inc., 726 F.Supp.2d 201, 210

national debt. Redemptionists claim (D.Conn.2010) (internal quotation marks omitted); see also

that government has power only Bryant v. Wash. Mut. Bank, 524 F.Supp.2d 753, 758–61

over the strawman and not over (W.D.Va.2007).

the live person, who remains free.

Individuals can free themselves by Theories presented by redemptionist and sovereign citizen

filing UCC financing statements, adherents have not only been rejected by the courts, but

thereby acquiring an interest in their also recognized as frivolous and a waste of court resources.

strawman. Thereafter, the real person See McLaughlin v, 726 F.Supp.2d at 210 (providing detailed

can demand that government officials explanation of the redemptionist theory and rejecting it);

pay enormous sums of money to use Charlotte v. Hanson, 433 Fed. Appx. 660, 661 (10th

the strawman's name or, in the case Cir.2011) (rejecting the sovereign citizen theory as having no

of prisoners, to keep him in custody. conceivable validity in American law) (citation omitted). A

recognized as “legally frivolous,” Ferguson—El v. Virginia, U.S.C. § 1915e is appropriate to prevent abuses

No. 3:10CV577, 2011 WL 3652327, *3 (E.D.Va. Aug.18, of the process of the court,” Nelson v. Spitzer,

2011), and civil cases based on redemptionist and sovereign No. 9:07–CV–1241, 2008 WL 268215, *1 n. 3

citizen theories have been found to be “utterly frivolous” and (N.D.N.Y. Jan.29, 2008) (citation omitted), as well

“patently ludicrous,” using “tactics” that are “a waste of their as “to discourage the filing of [baseless lawsuits],

time as well as the court's time, which is paid for by hard-

and [the] waste of judicial ... resources[.]” Neitzke,

earned tax dollars.” Barber v. Countrywide Home Loans, Inc., 490 U.S. at 327.

No. 2:09cv40, 2010 WL 398915, *4 (W.D.N.C. Oct.7, 2009).

When reviewing a complaint, the court may also look to the

*3 In short, Plaintiff seeks to avoid the consequences of Federal Rules of Civil Procedure. Rule 8 of the Federal Rules

his conviction by suggesting he exists as two separate legal of Civil Procedure provides that a pleading that sets forth

entities and that the State of New York and Broome County a claim for relief shall contain “a short and plain statement

do not have jurisdiction over both entities and thus must of the claim showing that the pleader is entitled to relief.”

release him and pay him damages. Such a theory is legally See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “ ‘is to give

frivolous. See Tirado v. New Jersey, No. 10–3408(JAP), fair notice of the claim being asserted so as to permit the

2011 WL 1256624, *4–5 (D.N.J. Mar.28, 2011) (observing a adverse party the opportunity to file a responsive answer, ...

similar argument “has absolutely no legal basis”); Marshall v. prepare an adequate defense,’ “ and determine whether the

Fla. Dep't Corr., No. 10–CV–20101, 2010 WL 6394565, *1 doctrine of res judicata is applicable. Hudson v. Artuz, No.

(S.D.Fla. Oct.27, 2010). Although the Court finds that these 95 CIV. 4768, 1998 WL 832708, *1 (S.D.N.Y. Nov.30, 1998)

theories are frivolous, in light of his pro se status, the Court (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16

will consider each possible claim in greater detail. (N.D.N.Y.1995) (quoting Brown v. Califano, 75 F.R.D. 497,

498 (D.D.C.1977))) (other citation omitted).

B. The Report, Recommendation, and Order A court should not dismiss a complaint if the plaintiff has

Section 1915(e) (2)(B) directs that, when a plaintiff seeks to stated “enough facts to state a claim to relief that is plausible

proceed in forma pauperis, “(2) ... the court shall dismiss on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,

the case at any time if the court determines that—... (B) the 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial

action ... (i) is frivolous or malicious; (ii) fails to state a claim plausibility when the plaintiff pleads factual content that

on which relief may be granted; or (iii) seeks monetary relief allows the court to draw the reasonable inference that the

against a defendant who is immune from such relief.” 28 defendant is liable for the misconduct alleged.” Ashcroft v.

U.S.C. § 1915(e)(2)(B).2 Thus, although the Court has the Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868

duty to show liberality toward pro se litigants, see Nance (2009) (citation omitted). Although the court should construe

v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam), and the factual allegations in the light most favorable to the

should exercise “extreme caution ... in ordering sua sponte plaintiff, “the tenet that a court must accept as true all of the

dismissal of a pro se complaint before the adverse party has allegations contained in a complaint is inapplicable to legal

been served and both parties (but particularly the plaintiff) conclusions.” Id. “Threadbare recitals of the elements of a

have had an opportunity to respond, ...” Anderson v. Coughlin, cause of action, supported by mere conclusory statements,

700 F.2d 37, 41 (2d Cir.1983) (internal citations omitted), the do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus,

court also has a responsibility to determine that a claim is “where the well-pleaded facts do not permit the court to infer

not frivolous before permitting a plaintiff to proceed with an more than the mere possibility of misconduct, the complaint

action in forma pauperis .3 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)).

2 To determine whether an action is frivolous, a court *4 When a party files specific objections to a magistrate

must look to see whether the complaint “lacks an judge's report-recommendation, the district court makes a

arguable basis either in law or in fact.” Neitzke v. “de novo determination of those portions of the report or

Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 specified proposed findings or recommendations to which

L.Ed.2d 338 (1989). objection is made.” 28 U.S.C. § 636(b)(1) (2006). When a

presented] to the magistrate judge,” the court reviews those Cir.1999)).

recommendations for clear error. O'Diah v. Mawhir, No. 9:08–

CV–322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) *5 The Supreme Court, in Lugar v. Edmondson Oil Co.,

(citations and footnote omitted). After the appropriate review, Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482

“the court may accept, reject, or modify, in whole or in part, (1982), established a two-prong test for determining when

the findings or recommendations made by the magistrate a private party's actions can be deemed to satisfy Section

judge.” 28 U.S.C. § 636(b)(1) (2006). 1983's requirement that the challenged conduct was “under

color of state law.” Actions of a private party can be deemed

A litigant's failure to file objections to a magistrate judge's “fairly attributable” to the state, and therefore treated as action

report-recommendation, even when that litigant is proceeding taken “under color of state law,” when (1) the deprivation

pro se, waives any challenge to the report on appeal. See is “caused by the exercise of some right or privilege created

Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003) (holding that, by the State or by a rule of conduct imposed by the State

“[a]s a rule, a party's failure to object to any purported error or or by a person for whom the State is responsible,” and (2)

omission in a magistrate judge's report waives further judicial “the party charged with the deprivation [is] a person who may

review of the point” (citation omitted)). A pro se litigant must fairly be said to be a state actor .” Hollander v. Copacabana

be given notice of this rule; notice is sufficient if it informs Nightclub, 624 F.3d 30, 33 (2d Cir.2010) (quoting Lugar, 457

the litigant that the failure to timely object will result in the U.S. at 937). A private party's actions may be attributable

waiver of further judicial review and cites pertinent statutory to the state under the second Lugar prong if it meets one of

and civil rules authority. See Frank v. Johnson, 968 F.2d 298, three tests: (1) “The ‘compulsion test’: the entity acts pursuant

299 (2d Cir.1992); Small v. Sec ‘y of Health & Human Servs., to the ‘coercive power’ of the state or is ‘controlled’ by the

892 F.2d 15, 16 (2d Cir.1989) (holding that a pro se party's state”; (2) “The ‘public function test’: the entity ‘has been

failure to object to a report and recommendation does not delegated a public function by the [s]tate’ “; or (3) “The ‘joint

waive his right to appellate review unless the report explicitly action test’ or ‘close nexus test’: the state provides ‘significant

states that failure to object will preclude appellate review and encouragement’ to the entity, the entity is a ‘willful participant

specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and in joint activity with the [s]tate,’ or the entity's functions are

former 6(e) of the Federal Rules of Civil Procedure). ‘entwined’ with state policies.” Hollander, 624 F.3d at 34

(quoting Sybalski v. Indep. Grp. Home Living Program, Inc.,

Having reviewed the Report, Recommendation, and Order 546 F.3d 255, 257 (2d Cir.2008) (internal citations omitted)).

and Plaintiff's objections thereto, the Court finds that

Magistrate Judge Peebles correctly determined that Plaintiff's In the present matter, Defendant ABA is a private party which

claims should be dismissed. As explained below, however, does not meet any of the three tests set forth above. Courts

the Court rejects Magistrate Judge Peebles' recommendation throughout the United States have already addressed this

insofar as it found that Plaintiff should be permitted a chance question and they have unanimously held that the American

to amend his complaint as to Defendant ABA. Bar Association is not a state actor for purposes of a Section

1983 action. See Hu v. American Bar Ass'n, 334 Fed. Appx.

Section 1983 itself does not create any substantive rights; 17, 18–19 (7th Cir.2009) (finding that the district court

rather, it provides a procedural mechanism for redressing properly dismissed the plaintiff's complaint because the ABA

the deprivation of rights created by the Constitution or laws is not a state actor); Lawline v. American Bar Ass ‘n, 956

of the United States. See Sykes v. James, 13 F.3d 515, 519 F.2d 1378, 1385 (7th Cir.1992) (concluding that “private bar

(2d Cir.1993) (citing City of Oklahoma City v. Tuttle, 471 associations are not state actors for the purpose of Section

U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). To 1983”); Rohan v. American Bar Ass'n, No. 93 CV 1338, 1995

state a cognizable claim under Section 1983, a plaintiff must WL 347035, *6–*7 (E.D.N.Y. May 31, 1995) (holding that

allege that “ ‘(1) the challenged conduct was attributable the ABA is a professional association, not a state actor, even

at least in part to a person who was acting under color of though admission to practice law in New York State requires

state law and (2) the conduct deprived the plaintiff of a right graduation from an ABA-accredited law school, because “the

guaranteed under the Constitution of the United States.’ “ State of New York has not explicitly delegated to the ABA its

Weiss v. Inc. Village of Sag Harbor, 762 F.Supp.2d 560, 568 responsibility for setting the requirements that an individual

must meet in order to be licensed as an attorney-at-law” and

State does not convert the ABA into a state actor”); see also “United States of America/Foreign Corporation of United

The Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate States,” and the State of New York, as well as the previously

Info. Servs., 608 F.3d 110, 121–22 (1st Cir.2010) (finding that named Defendants. See Dkt. No. 34 at 1–2. In the amended

state bar association was not a state actor). complaint, Plaintiff claims that the “United States of America

is guilty of criminal infringement of intellectual property,

*6 In the present matter, the Court agrees that Defendant failure of consideration, act of indemnity, insurance fraud,

ABA is not a state actor for Section 1983 purposes. New York securities fraud,” as well as an apparent violation of section

has not expressly delegated to the ABA its responsibility for 34 of the Judiciary Act4 and a conspiracy with the other

setting the requirements to practice law in New York; rather, named Defendants in violation of 18 U.S.C. § 241. See id. at

to become a member of the New York Bar, an individual must 4. Plaintiff claims that Defendants' actions were “in violation

comply with the Rules of the New York Court of Appeals on of misnomer contracts of surety” and led to his “wrongfull

admission to practice. See Rohan, 1995 WL 347035, at *5. [sic] imprisonment via commercial claims alleging DEATH

Further, the ABA was neither established by the State of New and DEBT.” Id. Plaintiff is seeking his immediate release,

York, nor is it funded or supported by the State. See id. at in addition to $150,0000,000 “upon court ordered ‘Release’

*7 (citations omitted). Additionally, school accreditation has from cestui que vie life insurance policy and foreign

been recognized as a function of private entities, rather than corporation of United States.” Id. at 6. Additionally, Plaintiff

one that “has been traditionally the exclusive prerogative of asks the Court to “expunge all criminal proceedings, charges,

the State.” Id. (quotation and other citation omitted). finger prints, DNA, blood, mugshots, arrest/arrest record of

alleged charges do to illegal commercial ... surety contracts

Based on the foregoing, the Court finds that Defendant ABA alleging DEATH or DEBT upon ‘RELEASE’ being granted.”

is not a state actor. As such, the Court rejects Magistrate Id.

Judge Peebles' recommendation only insofar as the report

recommended that the Court dismiss the claims against 4 Originally § 34 of the Judiciary Act of 1789,

Defendant ABA without prejudice. Although the Court

the Rules of Decision Act, now contained in 28

should generally permit a pro se litigant an opportunity to

U.S.C. § 1652, reads: “The laws of the several

amend, dismissal with prejudice is appropriate where, as here,

states, except where the Constitution or treaties of

any amendment of the complaint would be futile.

the United States or Acts of Congress otherwise

require or provide, shall be regarded as rules of

Further, the Court finds that Magistrate Judge Peebles

decision in civil actions in the courts of the United

correctly determined that Defendants Smith and White are

States, in cases where they apply.” It is unclear how

entitled to absolute immunity since Plaintiff has raised

an improper application of the Rules of Decision

claims against them in their capacities as a judge and

Act violated Plaintiff's rights and Plaintiff's nearly

prosecutor. See Hill v. City of New York, 45 F.3d 653, 660–

incomprehensible filings provide no insight.

61 (2d Cir.1995) (quotation omitted); DuQuin v. Kolbert,

320 F.Supp.2d 39, 40–41 (W.D.N.Y.2004) (citation omitted). *7 Having reviewed the amended complaint, the Court finds

Additionally, Plaintiff's claims against the Broome County that Plaintiff has failed to plausibly allege that he is entitled

Courts are barred by the Eleventh Amendment. See Thomas to any of the relief he seeks. A plaintiff may not collect

v. Bailey, No. 10–cv–51, 2010 WL 662416, *1 (E.D.N.Y. damages for his alleged wrongful imprisonment or conviction

Feb.22, 2010). Finally, to the extent that Plaintiff is seeking without first showing “that [his] conviction or sentence has

his immediate release from custody, such relief is only been reversed on direct appeal, expunged by executive order,

available from this Court by way of a writ of habeas corpus, declared invalid by a state tribunal authorized to make such

issued pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, determination, or called into question by a federal court's

411 U.S. 475, 498–99, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1975); issuance of a writ of habeas corpus.” Heck v. Humphrey,

see also Brown v. Freeport Police Dept., Nos. 13 CV 4047, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

13 CV 6514, 2014 WL 279847, *5 (E.D.N.Y. Jan.23, 2014) Here, Plaintiff has made no such showing and a review of

(citation omitted). the Department of Corrections and Community Supervision

website demonstrates that Plaintiff is still incarcerated.

does not create a private cause of action. See Storm–Eggink

v. Gottfried, 409 Fed. Appx. 426, 427 (2d Cir.2011) (citing IV. CONCLUSION

cases).

After carefully considering Magistrate Judge Peebles' Report,

Again, as discussed above, Plaintiff's claims against Recommendation, and Order, Plaintiff's objections thereto,

Defendants Smith and White must be dismissed because and the applicable law, and for the reasons stated herein, the

they are entitled to absolute immunity. See Hill, 45 F.3d at Court hereby

660–61 (quotation omitted); DuQuin, 320 F.Supp.2d at 40–

41 (citation omitted). Additionally, Plaintiff's claims against ORDERS that Magistrate Judge Peebles' October 16, 2013

the Broome County Courts and the State of New York Report, Recommendation, and Order is ADOPTED in part

are barred by the Eleventh Amendment. See Thomas, 2010 and REJECTED in part;5 and the Court further

WL 662416, at * 1. Further, to the extent that Plaintiff is

seeking his immediate release from custody, such relief is 5 Magistrate Judge Peebles' Report,

only available from this Court by way of a writ of habeas

Recommendation, and Order is only rejected

corpus, issued pursuant to 28 U.S.C. § 2254. See Preiser, 411

insofar as it recommended that the Court dismiss

U.S. at 498–99; see also Brown, 2014 WL 279847, at *5

Defendant ABA without prejudice.

(citation omitted). Finally, Plaintiff alleges no facts against

Defendant United States. Rather, the United States appears ORDERS that Plaintiff's complaint and amended complaint

to have been included as a Defendant solely under Plaintiff's are DISMISSED with prejudice; and the Court further

ludicrous sovereign citizen and redemptionist theories, which

are subject to dismissal. *8 ORDERS that the Clerk of the Court shall enter

judgment in Defendants' favor and close this case; and the

Based on the foregoing, the Court finds that Plaintiff's Court further

amended complaint fails to set forth any non-frivolous causes

of action. Since permitting additional amendment would ORDERS that the Clerk of the Court shall terminate

be futile, Plaintiff's amended complaint is dismissed with all pending motions not addressed in this Memorandum–

prejudice. Decision and Order as moot; and the Court further

In view of the frivolous nature of Plaintiff's claims, the ORDERS that the Clerk of the Court shall serve Plaintiff with

Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any a copy of this Memorandum–Decision and Order.

appeal from this order would not be taken in good faith and,

therefore, in forma pauperis status is denied for the purpose

IT IS SO ORDERED.

of an appeal. See Coppedge v. United States, 369 U.S. 438,

444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); see also Slack v. All Citations

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d

542 (2000). Not Reported in F.Supp.3d, 2014 WL 3670609

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.