The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JASON T. BLOWERS, SR.,
Plaintiff,
1:21-CV-1360
V. (MAD/DJS)
BRYAN P. NOVAK, Sergeant of Investigations,
et al.,
Defendants.
APPEARANCES:
JASON T. BLOWERS, SR.
Plaintiff, Pro Se
“| Northville, New York 12134
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Plaintiff filed this action on December 20, 2021. Dkt. No. 1. He filed a
supplemental letter setting forth additional new facts on January 7, 2022. Dkt. No. 5.
«| Plaintiff has not paid the filing fee but has submitted an application to proceed in forma
pauperis (“IFP”’), Dkt. No. 2, which the Court has granted. This matter is now before this
Court for review of the Complaint under 28 U.S.C. § 1915(e). Also pending is a Motion
for Appointment of Counsel. Dkt. No. 6.
_l-
I. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma
pauperis, “(2) .. . the court shall dismiss the case at any time if the court determines that
—...(B) the action . . . (1) is frivolous or malicious; (i1) 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).! Thus, even if a plaintiff meets the
financial criteria to commence an action in forma pauperis, it is the court’s responsibility
to determine whether the plaintiff may properly maintain the complaint that he filed in
this District before the court may permit the plaintiff to proceed with this action in forma
pauperis. See id.
In reviewing a pro se complaint, the court has a duty to show liberality toward pro
se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and both parties (but particularly the plaintiff)
«| have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if
the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.”
' 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 SS 319, 325 (1989).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although a court should construe the factual allegations in the light most favorable
to the plaintiff, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Jd. ‘“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Jd.
at 679 (quoting FED. R. CIV. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
Thus, a pleading that only “tenders naked assertions devoid of further factual
«| enhancement” will not suffice. /d. (internal quotation marks and alterations omitted).
B. Summary of the Complaint
The Complaint and Plaintiff's supplemental filing outline two specific instances
of alleged misconduct. First, are claims related to an allegedly unlawful search of
Plaintiff's residence which occurred in December 2016. Dkt. No. 1-1 at p. 4. Plaintiff
-3-
alleges that the search was unlawful under the Fourth Amendment because it was
conducted without justification. Specifically, Plaintiff alleges that the Jason Blowers
about whom Defendants obtained information regarding an alleged role in illegal
marijuana growing was actually Plaintiff's son, not him, and that as a result the wrong
residence was searched. /d. at pp. 3-4. Plaintiff seeks to pursue claims under 42 U.S.C. §
1983 and a state law defamation of character claim related to this search. Compl. at p. 3.
Plaintiff's submissions also assert claims against Frank Schellace, who is alleged
to be Plaintiff’s landlord. Dkt. No. 1-1 at p. 5. Schellace is alleged to be a resident of the
State of New York. Compl. at p. 2. This portion of Plaintiff's claim appears to relate to
eviction proceedings commenced by Schellace regarding Plaintiff's alleged non-payment
of rent. Dkt. No. 5.
C. Analysis of the Complaint
The Complaint clearly fails to state a claim as it relates to the 2016 search of
Plaintiff's home and must be dismissed. The statute of limitations for a section 1983
action in New York is three years. Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995).
«| “[A] cause of action under section 1983 accrues ‘when the plaintiff knows of or has reason
to know of the injury which is the basis of his action.”” Walker v. Cuomo, 2012 WL
4490760, at *2 (E.D.N.Y. Sept. 27, 2012) (quoting Pearl v. City of Long Beach, 296 F.3d
76, 80 (2d Cir. 2002)). Plaintiff clearly was aware of the search and his belief that it was
unlawful at the time it happened. Dkt. No. 1-1 at pp. 5-7. This action, commenced five
_4-
years later, is clearly untimely. Plaintiff's defamation claim is also time barred. Such
claims are governed by a one-year statute of limitations in New York. Lehman v.
Discovery Comme’ns, Inc., 332 F. Supp. 2d 534, 537 (E.D.N.Y. 2004); N.Y. C.P.L.R.
215(3)).
“Where it is clear from the face of the complaint that a claim is barred by the
applicable statute of limitations, the claim is subject to dismissal for failure to state a
claim on § 1915(e)(2)(B) review even though the statute of limitations bar is an
affirmative defense.” Ajamian v. Zakarian, 2014 WL 4247784, at *5 n.4(N.D.N.Y. Aug.
26, 2014).
Plaintiff also cannot maintain any claim regarding his ongoing eviction
proceedings in this Court. Federal courts are courts of limited jurisdiction. Home Depot
U.S. A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019). Jurisdiction exists when the matter
at issue arises “under the Constitution, laws or treaties of the United States.” 28 U.S.C.
§ 1331. Jurisdiction also exists when diversity of citizenship is present. 28 U.S.C. §
1332. Because Plaintiff can establish neither basis for jurisdiction here, dismissal is
appropriate.
Eviction proceedings do not establish a basis for federal question jurisdiction.
“This is because it is well settled that the landlord-tenant relationship is fundamentally a
matter of state law, and federal courts lack subject matter jurisdiction over state residential
landlord-tenant matters.” Silver v. Campbell, 2017 WL 4011259, at *5 (N.D.N.Y. Sept.
-5-
11, 2017) Gnternal quotations omitted). Nor is diversity jurisdiction present here. “To
have complete diversity, ‘each plaintiff's citizenship must be different from the
citizenship of each defendant.’” Johnson v. Glob. Promotion & Pub. Corp., 2013 WL
828744, at *1 (E.D.N.Y. Mar. 6, 2013) (quoting Hallingby v. Hallingby, 574 F.3d 51, 56
(2d Cir. 2009)). Here, there is clearly a lack of complete diversity since Plaintiff and
Schellace are both alleged to be residents of New York. Compl. at pp. 1-2. As a result,
diversity jurisdiction is lacking. Butler v. Geico Gen. Ins. Co., 2019 WL 330591, at *3
(N.D.N.Y. Jan. 25, 2019), report and recommendation adopted, 2019 WL 652197
(N.D.N.Y. Feb. 15, 2019).
“Ordinarily, a court should not dismiss a complaint filed by a pro se litigant
without granting leave to amend at least once ‘when a liberal reading of the complaint
gives any indication that a valid claim might be stated.’” Bruce v. Tomkins Cty. Dep’t of
Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting
Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Here, however, where the
grounds for dismissal offer no basis for curing the defects in the pleading, dismissal with
«| prejudice is appropriate. Kunz v. Brazill, 2015 WL 792096, at *3 (N.D.N.Y. Feb. 25,
2015). Accordingly, the Court recommends that the Complaint be dismissed with
prejudice.”
2 Tn light of this recommended disposition, the Motion for Appointment of Counsel is denied since Plaintiff cannot
make the required threshold showing that his claims fave merit. Gray v. Amazon, 2020 WL 8474763, at *2
Il. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be DISMISSED with prejudice;
and it is
ORDERED, that the Motion for Appointment of Counsel (Dkt. No. 6) is
DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)? days within
which to file written objections to the foregoing report. Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
(N.D.N.Y. Sept. 29, 2020), report and recommendation adopted sub nom. Gray on behalf of B.G. v. Amazon, 2021
WL 129051 (N.D.N.Y. Jan. 14, 2021).
3 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order 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. P. 6(a)(1)(C).
-7-
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIv. P. 72 & 6(a).
Dated: January 21, 2022
Albany, New York
ff /
US-Magistrate Judge
-8-