Robinson v. Wright

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

CHRISTOPHER E. ROBINSON,

Plaintiff,

v. 5:21-CV-1098

(TJM/ML)

MICHAEL WRIGHT, New York State Parole

Officer; MATTHEW MULLEN, New York

State Parole Officer; and TONIA

ZIMMERMAN, New York State Parole

Officer,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

CHRISTOPHER E. ROBINSON

Plaintiff, Pro Se

Cayuga Correctional Facility

Post Office Box 1186

Moravia, New York 13118

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent this pro se complaint together with an amended application to proceed

in forma pauperis and motion for appointment of counsel filed by Christopher E. Robinson

(“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 4, 7.) For the reasons discussed below, I

grant Plaintiff’s amended in forma pauperis application (Dkt. No. 7), deny Plaintiff’s motion for

appointment of counsel (Dkt. No. 4), and recommend that Plaintiff’s Complaint (Dkt. No. 1) be

dismissed with leave to amend.

I. BACKGROUND

Construed as liberally1 as possible, Plaintiff’s Complaint alleges that defendants Michael

Wright, Matthew Mullen, and Tonia Zimmerman (collectively “Defendants”), who are all New

York State parole officers, violated his civil rights by submitting perjured testimony against him.

(See generally Dkt. No. 1 [Compl.].) Plaintiff alleges that based on Defendants’ perjured

statements, the parole violations against him were sustained and he has been reincarcerated. (Id.)

Based on these factual allegations, Plaintiff asserts the following three causes of action: (1) a

claim that Plaintiff’s right to a fair trial was violated pursuant to the Due Process Clause in the

Fourteenth Amendment and 42 U.S.C. § 1983; (2) a claim that Plaintiff’s right to life, liberty,

and property was violated pursuant to the Fifth Amendment and 42 U.S.C. § 1983; and (3) a

claim that his right to be free from cruel and unusual punishment was violated pursuant to the

Eighth Amendment and 42 U.S.C. § 1983. (Id.) As relief, Plaintiff seeks $3,000,000.00 in

damages against Defendants. (Id.)

II. PLAINTIFF’S AMENDED APPLICATION TO PROCEED IN FORMA

PAUPERIS

“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court

without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-

CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).2 “Although an indigent,

1 The court must interpret pro se complaints to raise the strongest arguments they suggest.

Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)).

2 Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a

showing of “imminent danger of serious physical injury,” a prisoner has filed three or more

actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon

which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff’s

litigation history on the Federal Judiciary’s Public Access to Court Electronic Records

(“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review

incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently

pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate

accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New

York, 607 F.3d 18, 21 (2d Cir. 2010)).

Upon review, the Court finds that Plaintiff has submitted a completed amended IFP

application which has been certified by an appropriate official at his facility (Dkt. No. 7), and

which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the

inmate authorization required in the Northern District. (Dkt. No. 3.)

Accordingly, Plaintiff's amended application to proceed with this action IFP is granted.

(Dkt. No. 7.)

III. LEGAL STANDARD GOVERNING INITIAL REVIEW OF A COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

In order to state a claim upon which relief can be granted, a complaint must contain, inter

alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief

means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis

added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a

that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date

this action was commenced.

complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial

experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged–but it has not

shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and

punctuation omitted).

“In reviewing a complaint . . . the court must accept the material facts alleged in the

complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.

Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court

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

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

“[E]xtreme caution should be exercised in ordering sua sponte dismissal of a . . .

complaint before the adverse party has been served and [the] parties . . . have had an opportunity

to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). The Court, however, also

has an overarching obligation to determine that a claim is not legally frivolous before permitting

a plaintiff’s complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp.,

221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous

complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal

frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as]

when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the

face of the complaint.” Aguilar v. United States, 99-MC-0304, 99-MC-0408, 1999 WL

1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141

F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989)

(“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable

basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based

on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be

based upon a defense that appears on the face of the complaint.”).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe his

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that his claims

be dismissed.

“Although a parolee facing revocation of release is not entitled to the ‘full panoply of

rights’ due [to] a defendant in a criminal prosecution, the Supreme Court has held that the

revocation of parole implicates a liberty interest protected by the Due Process Clause of the

Fourteenth Amendment.” Guarneri v. Wood, 08-CV-0792, 2011 WL 4592209, at *19

(N.D.N.Y. Sept. 2, 2011) (Homer, M.J.) (citing Morrisey v. Brewer, 408 U.S. 471, 482 (1972)).

“It is firmly established that a constitutional right exists not to be deprived of liberty on

the basis of false evidence fabricated by a government officer.” Zahrey v. Coffey, 221 F.3d 342,

355 (2d Cir. 2000). “No ‘reasonably competent officers could disagree,’ that a parole officer

can[]not properly rely on evidence he knows to be false.” Scotto v. Almenas, 143 F.3d 105, 113

(2d Cir. 1998) (citations and alteration omitted) (quoting Ricciuti v. N.Y.C. Transit Auth., 124

F.3d 123, 128 (2d Cir. 1997)). Indeed, the Second Circuit has “held that Section 1983 liability

attaches for knowingly falsifying evidence even where there simultaneously exists a lawful basis

for a deprivation of liberty.” Victory v. Pataki, 814 F.3d 47, 64 (2d Cir. 2016) (citing Ricciuti,

124 F.3d at 130) (“No arrest, no matter how lawful or objectively reasonable gives an arresting

officer or his fellow officers license to deliberately manufacture false evidence against an

arrestee.”).

I find that Plaintiff’s brief factual allegation—that Defendants provided perjured

testimony—fails to state a claim under the Fifth, Eight, and Fourteenth Amendment for

deprivation of his liberty and property, cruel and unusual punishment, and violation of his right

to due process. Plaintiff’s brief factual allegation fails to state any claim upon which relief may

be granted. Plaintiff’s allegations are insufficient under Rule 8 of the Federal Rues of Civil

Procedure, which requires that pleadings set forth a claim for relief contain, inter alia, “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). Plaintiff’s summary allegation is insufficient to give Defendants “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, 95-CV-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) (McAvoy, C.J.)). Plaintiff fails to allege what statements Defendants allegedly

made which were false and provided under penalty of perjury.

As a result, I recommend that Plaintiff’s Complaint be dismissed.

V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). An opportunity to amend is not required, however, where “the problem

with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding

L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact

sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated

differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is

not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).3

In light of Plaintiff’s pro se status, the Court recommends that prior to outright dismissal,

Plaintiff be afforded the opportunity to submit an amended complaint, with the warning that

failure to submit an amended complaint will result in dismissal of this action.

If Plaintiff chooses to file an amended complaint, he should note that the law in this

circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient

unless they contain some specific allegations of fact indicating a deprivation of rights, instead of

a litany of general conclusions that shock but have no meaning.’” Hunt v. Budd, 895 F. Supp.

35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.

1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y.

May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff 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

3 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

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. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.

1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing

Complaint, and must be a wholly integrated and complete pleading that does not rely upon or

incorporate by reference any pleading or document previously filed with the Court. See Shields

v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an

amended complaint ordinarily supersedes the original and renders it of no legal effect.”).

VI. PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff has also submitted a request for appointment of counsel. (Dkt. No. 4.) The

application indicates that Plaintiff’s motion for appointment of counsel is the “only step [he has]

taken in order to obtain counsel.” (Id.) Therefore, Plaintiff’s motion is deficient because it does

not assert that he has been unsuccessful in his efforts to obtain counsel on his own from the

private sector. (Id.); Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994).

“A party has no constitutionally guaranteed right to the assistance of counsel in a civil

case.” Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011)

(citations omitted). Courts cannot utilize a bright-line test in determining whether counsel

should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-

93 (2d Cir. 1997). Instead, a number of factors must be carefully considered by the court in

ruling upon such a motion. As a threshold matter, the court should ascertain whether the

indigent’s claims seem likely to be of substance. A motion for appointment of counsel may be

properly denied if the court concludes that the plaintiff’s “chances of success are highly

dubious.” Leftridge, 640 F.3d at 69. If the court finds that the claims have substance, the court

should then consider:

[T]he indigent’s ability to investigate the crucial facts, whether conflicting

evidence implicating the need for cross-examination will be the major

proof presented to the fact finder, the indigent’s ability to present the case,

the complexity of the legal issues and any special reason in th[e] case why

appointment of counsel would be more likely to lead to a just

determination.

Terminate Control Corp., 28 F.3d at 1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61-62

(2d Cir. 1986)). This is not to say that all, or indeed any, of these factors are controlling in a

particular case. Rather, each case must be decided on its own facts. Velasquez v. O’Keefe, 899

F. Supp. 972, 974 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61).

In the present matter, the Court has recommended dismissal of the action. As such, the

Court cannot find that Plaintiff’s claims are likely to be of substance. Plaintiff’s motion (Dkt.

No. 4) is therefore denied.

ACCORDINGLY, it is

ORDERED that the amended application to proceed in forma pauperis (Dkt. No. 7) is

GRANTED; and it is further

ORDERED that Plaintiff’s motion for appointment of counsel (Dkt. No. 4) is DENIED

without prejudice and with leave to renew; and it is further respectfully

RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD

Plaintiff’s claims, for failure to state a claim upon which relief may be granted pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii); and it is further

ORDERED that the Clerk of the Court shall file a copy of this order, report, and

recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.4

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within

which to file written objections to the foregoing report.> Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.

Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: March 23 , 2022

Binghamton, New York f .

Miroslav Lovric

U.S. Magistrate Judge

4 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

> If you are proceeding pro se and served with this report, recommendation, and order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date that the report, recommendation, and order was mailed to you to

serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

10