# Altimonte v. Leboz

> District Court, N.D. New York · July 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10314019

## Case

- **Court:** District Court, N.D. New York
- **Decided:** July 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10314019

## How later opinions describe it (automated extraction)

- affirming dismissal of plaintiff’s claim under 18 U.S.C. § 242 because this “criminal statute . . . do[es] not provide private causes of action”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314019. Public record. Not legal advice.