# Robinson v. Wright

> District Court, N.D. New York · March 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10314697

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 23, 2022
- **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/10314697

## How later opinions describe it (automated extraction)

- holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314697. Public record. Not legal advice.