Tabor v. Baye

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

ALEX D. TABOR,

Plaintiff, 6:22-CV-0348

(DNH/ML)

v.

POLICE OFFICER BAYE, Utica

Police Dep’t,

Defendant.

_____________________________________________

APPEARANCES: OF COUNSEL:

ALEX D. TABOR

Plaintiff, Pro Se

663 Bleeker Street

Utica, New York 13501

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent this pro se Complaint (Dkt. No. 1) together with an application to

proceed in forma pauperis (Dkt. No. 2) to the Court for review. For the reasons discussed

below, I grant Plaintiff’s in forma pauperis application (Dkt. No. 2) and recommend that

Plaintiff’s Complaint (Dkt. No. 1) be dismissed in its entirety with leave to amend.

I. BACKGROUND

Liberally construed,1 Plaintiff’s Complaint—which is a form complaint pursuant to 42

U.S.C. § 1983—asserts that his rights were violated by Defendant Police Officer Baye

(“Defendant”) of the Utica Police Department. (See generally Dkt. No. 1.) The Complaint

appears to allege that at some point in time, Plaintiff was “alienated by Utica New York Police

Officers,” which violated his rights. (Id. at 2.)

Based on these factual allegations, Plaintiff appears to assert the following three claims:

(1) a claim of alienation, (2) a claim that he was denied freedom of information, and (3) a claim

of judicial and medical negligence. (Id. at 3.) As relief, Plaintiff seeks monetary relief of an

unspecified amount. (Id. at 4.)

The Complaint is a series of incomplete sentences that are largely indecipherable and

devoid of factual assertions. (See generally, Dkt. No. 1.)

II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS

“When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,

however, to permit a litigant to proceed 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).2 After reviewing Plaintiff’s in

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 The language of that section is ambiguous because it suggests an intent to limit

availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1)

(authorizing the commencement of an action without prepayment of fees “by a person who

submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts

have construed that section, however, as making in forma pauperis status available to any litigant

who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed.

Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard.

Therefore, Plaintiff’s application to proceed in forma pauperis is granted.3

III. LEGAL STANDARD FOR INITIAL REVIEW OF 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

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.

3 Plaintiff is reminded that, although his application to proceed in forma pauperis has been

granted, he is still required to pay fees that he may incur in this action, including copying and/or

witness fees.

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.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint

sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua

sponte dismissal of a pro se 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 pro se 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 all causes

of action be dismissed.

Although Plaintiff completes his Complaint on a form complaint for actions pursuant to

42 U.S.C. § 1983, the allegations contained in the Complaint are merely a series of legal jargon

that form incomplete sentences.

By way of example, the entirety of the factual allegations contained in the Complaint

assert as follows:

I was alienated by Utica New York police officers violating my liberty,

breach of duty of care, denial of acess to medical, refusal to take reports of

theft and robbery, refused to allow me to speak with a supervisor, and

freedom of information.

(Dkt. No. 1 at 2 [errors in original].) In addition, Plaintiff’s first cause of action reads:

Alienation – not contacting my emergency medical violation of liberty –

no reason other than here say due process.

(Dkt. No. 1 at 3 [errors in original].)

As the Complaint is currently drafted, the Court is unable to meaningfully analyze,

whether, and to what extent, Plaintiff has pleaded any colorable claim against Defendant. (See

generally Dkt. No. 1.) Plaintiff’s Complaint places an unjustified burden on the Court and,

ultimately, on Defendant “‘to select the relevant material from a mass of verbiage.’” Salahuddin

v. Cuomo, 861 F.2d 40, 41-42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice

and Procedure § 1281, at 365 (1969)).

As a result, I recommend the Complaint be dismissed as frivolous. See, e.g., Gillich v.

Shields, 18-CV-0486, 2018 WL 2926299 (N.D.N.Y. Apr. 30, 2018) (Peebles, M.J.), report and

recommendation adopted by 2018 WL 2926302, at *3 (N.D.N.Y. Jun. 8, 2018) (D'Agostino, J.);

Canning v. Hofmann, 15-CV-0493, 2015 WL 6690170, at *5 (N.D.N.Y. Nov. 2, 2015) (Hurd, J.)

(“Under these circumstances, having found that none of the allegations in Plaintiff’s meandering

and indecipherable Complaint raise a cognizable cause of action, the Court concludes that the

Complaint fails to state a claim upon which relief may be granted and is subject to dismissal.”);

see also Salahuddin, 861 F.2d at 42 (“Dismissal [for failure to comply with the requirements of

Rule 8 of the Federal Rules of Civil Procedure] . . . 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.”).

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.).

In this case, it is not clear whether better pleading would permit Plaintiff to assert a

cognizable cause of action against Defendant. Out of deference to Plaintiff’s pro se status,

however, I recommend that Plaintiff be granted leave to amend the Complaint.

If Plaintiff chooses to avail himself of an opportunity to amend, such amended pleading

must set forth a short and plain statement of the facts on which he relies to support any legal

claims asserted. Fed. R. Civ. P. 8(a). In addition, the amended complaint must include

allegations reflecting how the individual(s) named as Defendant(s) is involved in the allegedly

unlawful activity. 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.”

(internal quotation marks omitted)).

ACCORDINGLY, it is

ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) is

GRANTED; and it is further

RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD

Plaintiff’s Complaint (Dkt. No. 1) as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B); 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: June 22, 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).