# Chaney v. Cook

> District Court, N.D. New York · November 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10315523

## Case

- **Court:** District Court, N.D. New York
- **Decided:** November 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

NAKIA CHANEY,
Plaintiff,
V. 1:22-CV-0839
(GTS/CFH)
°| KEITH COOK, et al.

Defendants.

APPEARANCES:
Nakia Chaney
1022 Third Avenue
Schenectady, New York 12303
Plaintiff pro se
I
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION & ORDER
I. In Forma Pauperis
Plaintiff purported to commence this action on August 12, 2022, with the filing of
a complaint and application for leave to proceed in forma pauperis (“IFP”). See Dkt. No.

m| 1 (“Compl.”), 2 (IFP). After reviewing plaintiffs IFP application, the undersigned
determines that plaintiff financially qualifies to proceed IFP for purposes of filing. Thus,
the Court must review the sufficiency of plaintiff's complaint pursuant to 28 U.S.C. §
1915.

ll. Legal Standard

Section 1915(e)' of Title 28 of the United States Code directs that, when a
plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the court
determines that ... the action or appeal (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). It is a court's responsibilit
to determine that a plaintiff may properly maintain his complaint before permitting him to
proceed with his action. Where the plaintiff is proceeding pro se, the court must
consider the claims “liberally” and “interpret them ‘to raise the strongest arguments that
they suggest.” Cold Stone Creamery, Inc. v. Gorman, 361 F. App’x 282, 286 (2d Cir.
2010) (Summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)). It
is well-established that “[p]ro se submissions are reviewed with special solicitude, and
Must be construed liberally and interpreted to raise the strongest arguments that they
suggest.’” Matheson v. Deutsche Bank Nat'l Tr. Co., 706 F.Appx. 24, 26 (2d Cir. 2017)
(summary order) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006) (per curiam); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008) (Where the plaintiff proceeds pro se, a court is “obliged to construe his pleadings
liberally.”) (quoting McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
However, this approach “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

1 The language of section 1915 suggests an intent to limit availability of IFP 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’).
However, courts have construed that section as making IFP status available to any litigant who can meet
the governing financial criteria. See, e.g., Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y.
2002). Accordingly, a financial assessment and, if determined to be financially qualified, a initial review of
the complaint pursuant to section 1915 is required of any plaintiff who seeks to proceed IFP, regardless o
their incarceration status.

Cir. 1983). “[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.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). The Court
may not “invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) .
“The [Second Circuit]'s ‘special solicitude’ for pro se pleadings, Ruotolo v. IRS,
28 F.3d 6, 8 (2d Cir. 1994), has its limits, because pro se pleadings still must comply
with Rule 8(a) of the Federal Rules of Civil Procedure.” Kastner v. Tri State Eye, No.
19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019). Pleading
guidelines are set forth in the Federal Rules of Civil Procedure. Specifically, Rule 8
| provides that a pleading which sets forth a claim for relief shall contain, inter alia, "a
short and plain statement of the claim showing that the pleader is entitled to relief." See
FeD. R. Civ. P. 8(a)(2). “The 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,
prepare an adequate defense and determine whether the doctrine of res judicata is
applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation
Marks and citations omitted). Rule 8 also requires the pleading to include:
(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... .

FeD. R. Civ. P. 8(a). Although “[n]o technical form is required,” the Federal Rules make
clear that each allegation contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d).
Further, Rule 10 of the Federal Rules provides:
[a] party must state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances. A later
o pleading may refer by number to a paragraph in an earlier pleading. If
doing so would promote clarity, each claim founded on a separate
transaction or occurrence — and each defense other than a denial — must
be stated in a separate count or defense.
FED. R. Civ. P. 10(b). This serves the purpose of "provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]" Flores, 189
F.R.D. at 54 (internal quotation marks and citations 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.”
Ashcroft v. Iqbal, 556 U.S. 622, 678 (2009). 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.” 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.” Iqbal, 556
U.S. at 678 (citation omitted).
Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading
that only “tenders naked assertions devoid of further factual enhancement” does not

suffice.” Id. (internal quotation marks and alterations omitted). Allegations that “are so
vague as to fail to give the defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'’x 102, 104 (2d Cir. 2009) (summary
order). Indeed, a complaint that fails to comply with these pleading requirements
“presents far too a heavy burden in terms of defendants’ duty to shape a comprehensiv
| defense and provides no meaningful basis for the Court to assess the sufficiency of
their claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second
Circuit has held, “[W]hen a complaint does not comply with the requirement that it be
short and plain, the court has the power, on its own initiative . . . to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted).
However, “[d]ismissal . . . 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.” Id. (citations omitted).

Ill. Complaint
Plaintiff's complaint consists of twenty-eight single-spaced typed pages, written i
block format, with many paragraphs running the length of more than one page, and 495
| pages of exhibits. Review of plaintiff's complaint reveals that it is really five?

2 Of these documents 266 pages are exhibits appended to the complaint and 229 pages are medical
records which were submitted with the complaint which the Court separately docketed at docket number
2. See Dkt. Nos. 1, 2.
3 The first “complaint involves the August 2019 motor vehicle accident. The second “complaint” involves
employment-related claims against his former employer, supervisor, and coworkers. The third “complaint
involves a claim relating to an eviction, concerns with his Section 8 housing, and alleged use of excessive
force from the Schenectady police. The fourth “complaint” is against his former attorneys and involves hi
dissatisfaction of their representation. The “fifth” complaint involves a May 2020 incident where plaintiff
alleges that the Albany Police did not allow plaintiff to record a video on his phone and damaged his
phone as well as plaintiff's attempts to acquire certain relevant records relating to this interaction and
Albany Police Department's policies. See generally Compl.

complaints in one. Rather than file separate complaints, as is required, plaintiff
attempts to bring all of the separate claims together in one action, despite the lack of
connection between the various claims. As will be explained in greater detail below,
because plaintiff's attempt to file multiple claims involving unrelated occurrences and
defendants is violative of Fed. R. Civ. P. 20, the undersigned will be reviewing only the
°| first “complaint” and will be recommending dismissal without prejudice of the remaining
complaints so that they may be refiled as separate actions, each with their own filing fee
or in forma pauperis application. See infra at 11.
Plaintiff's first “complaint” involves a motor vehicle accident between himself and
an individual, Keith Cook, on August 13, 2019. See Compl. at 2-3. Plaintiff contends
that he suffered injuries when Mr. Cook sped through a red light and collided with his
m| Vehicle. See id. at 3. Plaintiff seeks to sue Mr. Cook; his insurance company,
Adirondack Insurance Exchange Company (“Adirondack”); Progressive Insurance
Company (“Progressive”); various employees of Adirondack and Progressive; and Todd
Roberts, Guilderland Police Officer. See id. at 1-9. Plaintiff contends that, as a result o
the motor vehicle accident, he suffered injuries which left him unable to work, and that
certain defendants’ failures to timely pay claims, allow him to continue certain medical
| treatment, or offer what is, in his mind, a reasonable settlement, led to his
homelessness. See Compl. at 2.
Plaintiff argues that this Court has both diversity jurisdiction and federal question
jurisdiction over the case. See Compl. at 2. He contends there is diversity jurisdiction
because Mr. Cook and Adirondack “whom [sic] a private party acting as a state actor
provides insurance for defendants Keith Cook within the jurisdiction of the court

pursuant to 28 usc 1915e Taylor versus Anderson 234 us 74.” Id. at 2. Plaintiff also
states that the case presents a federal question because the case involves “[t]he equal
protection clause of federal due process clause and violations of the new York state
constitution and other city and county laws or applicable laws, statutes, regulations,
ordinances or Case authorities on point as to the various nys constitution and united
| states constitution and civil rights violation described herein.” Id. at 1. Plaintiff
specifically contends that the action “is brought pursuant to 42 USC section 1983” and
states that the Court “has jurisdiction over this action pursuant to 28 USC sections
1331, 1343(d) and (4) and 2201, and 42 usc 1983 and 1988 which confers jurisdiction i
actions authorized by 42 usc 1983 against defendants acting under color of state law,
statues, ordinances, regulations custom or usage.” Id. at 2.
Plaintiff also names as a defendant Natalie Pease, “the Policy holder and
property damage claims adjuster” for Adirondack. See Compl. at 4. Plaintiff disagreed
with the “low ball offer’ Ms. Pease made. Id. He also contends that Ms. Pease “blames
plaintiff for defendants [sic] Todd Roberts [sic] mistake of not turning on body cameras
in violation of the police policy[.]” Id. Plaintiff also names as a defendant Robert Burke,
who appears to also be an employee of Adirondack, as plaintiff contends he “failed to
| consider the true nature and impact of plaintiffs [sic] losses and injuries, missing work,
year of taking pain medications, became homeless in shelter ....” Id. Plaintiff
contends that Mr. Burke is the “policy holder and bodily injury claims adjuster to issue
payment on behalf of client defendant Keith cook policy/negligence[.]’ Id. at 3. Plaintiff
claims that Mr. Burke “failed to consider the fact that plaintiff have [sic] been unable to
work to pay rent etc or due [sic] normal activities like shoveling, carrying groceries,

picking up infant or paying with him, no weight training, constant pain, stomach
problems and changes of medications due to taking pain medications for over a year
solely due to accident[.]” Id. at 4. Plaintiff further states that Mr. Burke “failed to
consider the allegations contained within this complaint or demand letters attached in
support of complaint and came with a low ball offer of 77,000 which is less than the age
portion, futures [sic] employment wages, overtime, pay rates at 19 an hour for 40 hours
a week with overtime and side jobs for weekends.” Id. Plaintiff argues that although
Adirondack “claimed 100 percent liability for the August accident on behalf of their
client[,]’ Mr. Burke, “bodily injury claims adjuster,” offered 80,000 to settle and the
second bodily injury claims adjuster Amanda was a little more generous at 94,000 and
yet both offers declined to consider plaintiff [sic] true loses [sic] and other failed [sic] to
m| consider” other various damages. ld. at 6. Plaintiff also names as defendants Christine
Corrida and Amanda Hughes, who appear to be Progressive employees who failed to
provide plaintiff with “outstanding wage payment,” “outstanding medical bills and denial
of therapy and medical visits.” Id. at 3, 6.
Plaintiff also names as a defendant Guilderland Police Officer Todd Roberts,
“who arrived on accident scene August 13, 2019.” Compl. at 4-5. Plaintiff argues that
| Officer Roberts improperly “failed to inventory broken items inside plaintiff [sic] vehicle
as a direct result of the accident and failed to file property destruction reports among
other violations and failed to file property destruction reports.” Id. at 4. Plaintiff states
that Officer Roberts’ failure to inventory all damaged items in his vehicle, instead
advising plaintiff to report the damaged items to the insurance company “without filing
police property damage report of all items destroyed in the vehicle[,] . . . lead to the

Adirondack insurance company’s adjusters [sic] shenanigans trying to shift fault and
minimize the payments of the broken/destroyed electronics.” Id. at 7.
Plaintiff also names as a defendant Progressive Insurance Company. See
Compl. At 2 (“the official position for the defendants progressive insurance policy holder
responsible for payment of outstanding childcare and transportation expenses outside
°| of policy limits of 25 dollars a day and outstanding medical transportation expenses
outside of the policy limits of 25 dollars a day.)” Id. at 3. Plaintiff contends that
Progressive improperly failed to pay childcare and transportation expenses he incurred
after the motor vehicle accident. See id. at 2-3. Plaintiff further argues that physical
therapy he received following the accident “erroneously ended as progressive insuranc
stopped payment” despite the fact that the “progressive insurance doctor ordered
Surgery or epidural injunctions.” Id. at 5. Plaintiff contends that medical and other
records demonstrate that he has “been unable to work for over 300 days and counting
... Which meets the criteria under insurance laws section 5102(d), under the 90/180
days categories as both all doctors notes from date of August 13 2019 thru [sic] June 20
2020 on file with progressive insurance and all monthly payment from progressive
insurance . .. served as confirmation that plaintiff clearly surpassed the minimum of 90
days thus satisfying the 90/180 requirements[.]” Id.
Plaintiff has included a prayer for relief section, albeit under the misnomer of
“causes of action.”. Plaintiff contends that his “causes of action” are (1) “special
damages” from medical bills, lost income, out of pocket expenses and personal propert
losses in the amount of $3 million; (2) “pain and suffering” with requested damages of

$3 million for pain from the accident; (3) “emotional distress” as the accident “inflated
my anxiety,” causing nightmares and fear of driving for which he demands $3 million;
(4) “loss of enjoyment” as the accident “has interfered with every day activities” as
plaintiff has been unable to work, care for his infant son, play with his children,jog, run,
“walk long hours’; lift weights; or play basketball, for which he demands $3 million;
o (5) “lost [sic] of consortium” for which he demands “100,000 for myself and 300,000 on
behalf of my wife until she finds her own lawyer’; (6) “lost [sic] of consortium on behalf
of my infant and other five children” as he is unable to care for them, for which he
demands $300,000; (7) “lost [sic] of financial support for my wife and children” as he is
unable to work due to the accident; (8) “loss of services” as plaintiff “has not been able
to home work like lawnmower or groceries due to injury and demand $300,000”;
“past and future medical bills” for which he demands $300,00 [sic]; (10) “whiplash
self care at home on behalf of my family for holding cold and hot packs, massages and
medications | demand 100,00 [sic] on their behalf’; (11) “punitive damages” against
Keith Cook, the driver of the motor vehicle, as his conduct was “malicious and
egregious”; (12) “personal property damage” to “several electronics” in the accident, for
which he demands $100,000; (13) “out of pocket expenses my gasoline and taxi and
| Childcare | demand 30,000” (14) “future pain and suffering”; (15) “future medical bills”;
(16) “future lost Wages or retraining for desk jobs”; (17) “invasive medical procedures
January 20,2020 undergo finger in butt against religion at Ellis; (18) “loss of financial
support from spouse”; (19) “whiplash home care” (20) “shelter and homeless as a direct
result of unable to work and pay my rent due to accident”; (21) “stomach problems due
to over a year of taking pain medicine due to stomach irritation[.]’ Id. at 7-9.

10

Finally, although it is not clear, plaintiff may have already commenced another
action regarding the car accident. He states that he “request body cameras policy in
effect at said time on August 13, 2019, in support of complaint and summary judgment.”
Compl. at 4.

° IV. Analysis*
As a threshold issue, plaintiff's complaint violates Fed. R. Civ. P. 20. See
generally Compl. “Under Rule 20 of the Federal Rules of Civil Procedure, a plaintiff
may not pursue unrelated claims against multiple defendants.” Kastner v. Tri State Eye,
No. 19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (citing Feb.
R. Civ. P. 20(a)(2) (“Persons . . . may be joined in one action as defendants if: (A) any
right to relief is asserted against them jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will arise in
the action.”) and Peterson v. Regina, 935 F. Supp. 2d 628, 638 (S.D.N.Y. 2013) (“Case
law makes clear that [i]n the absence of a connection between Defendants’ alleged
misconduct, the mere allegation that Plaintiff was injured by all Defendants is not
| SUfficient [by itself] to join unrelated parties as defendants in the same lawsuit pursuant
to Rule 20(a).”)) (additional citation and quotation marks omitted). Thus, as will be
discussed below, plaintiff may not proceed with this complaint as it attempts to bring
multiple, unconnected claims against various unrelated defendants.
Further, as to plaintiff's hundreds of pages of unexplained exhibits,

wopies unpublished cases cited within this Report-Recommendation & Order have been provided to
plaintiff.
11

[g]lenerally, district courts must construe pro se complaints liberally, but
“even a pro se litigant cannot simply dump a stack of exhibits on the court
and expect the court to sift through them to determine if some nugget is
buried somewhere in that mountain of papers, waiting to be unearthed and
refined into a cognizable claim.
Kastner, 2019 WL 6841952, at *3. Plaintiff cannot expect the Court to search through
his exhibits in an attempt to identify support for his claims. Instead, plaintiff needs to
explain the relevancy of each exhibit within the complaint. See id.
Plaintiff's attempt to skirt the requirement of commencing multiple actions for his
unrelated cases by filing them in one is inappropriate and impermissible under the
Federal Rules. Requiring this Court to “sift through” this amalgam of claims and facts,
parse out which facts are relevant to which defendants and claims, attempt to match
relevant exhibits, and then review it all and manage on one docket is too heavy a
m| burden for this Court to bear. In light of special solicitude, the undersigned will review
and consider the merits of the first “complaint” included in this filing, which relates to a
2019 motor vehicle accident. As for all of the other unrelated “complaints” that follow
the first, the undersigned will recommend dismissal without prejudice and with leave to
separately refile new and separate actions for all of the other complaints.
As mentioned above, the undersigned will review plaintiff's first “complaint”
| involving the motor vehicle accident pursuant to section 1915. Plaintiffs claims relating
to the motor vehicle accident and insurance companies must be dismissed with
prejudice for failure to demonstrate diversity jurisdiction or federal question jurisdiction.
Federal courts are courts of limited jurisdiction and may not preside over cases absent
subject matter jurisdiction. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S.
546, 552 (2005). Subject matter jurisdiction is available only when a “federal question”

12

is presented or when the plaintiff and all defendants are of diverse citizenship and the
amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332. When a court
lacks subject matter jurisdiction, dismissal of the complaint is mandatory. See Arbaugh
v. Y & H Corp., 546 U.S. 500, 514 (2006). Federal courts “have an independent
obligation to determine whether subject-matter jurisdiction exists, even in the absence
challenge from any party.” Id. (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583 (1999)). To invoke “federal question” jurisdiction, a plaintiffs claims must arise
“under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
Federal diversity jurisdiction under 28 U.S.C. § 1332(a) exists only when there is
complete diversity—where each plaintiff's citizenship is different from the citizenship of
each defendant. See Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296, 302 (2d
m| Cir. 2004), cert. denied, 544 U.S. 949 (2005) (citing Caterpillar Inc. v. Lewis, 519 U.S.
61, 68 (1996)). Plaintiff fails to demonstrate complete diversity jurisdiction. Plaintiff □□ a
citizen of New York. He provides an address in Schenectady, New York. See generall
Comp. Plaintiff also provides that the driver of the accident, defendant Cook, resides in
Albany, New York. See Compl. at 3. Plaintiff states that Progressive is based in New
York. See Compl. at 3 (“[uJpon information and beliefs [sic] progressive insurance
| Company operates in the state of new York and has an office listed herein within the
jurisdiction of this court.”). Although plaintiff does not address Officer Roberts’
residency, it is very likely he is also a resident of New York as he works for the
Guilderland Police Department. Although plaintiff does not provide addresses for Ms.
Corrida, Ms. Hughes, Mr. Burke, or Ms. Pease or address their residencies, even if they
were not residents of New York State, diversity jurisdiction does not lie because, due to

13

Mr. Cook being a New York resident, plaintiff cannot demonstrate complete diversity.
Similarly, even if Adirondack is headquartered in North Carolina and is a resident of
North Carolina, because plaintiff has not shown that every defendant is from a different
state than plaintiff, he cannot show diversity jurisdiction. See Briarpatch Ltd., 373 F.3d
at 302. In other words, because plaintiff is a resident of New York, for complete
o diversity jurisdiction, none of the defendants can also be residents of New York.
Plaintiff also cannot demonstrate federal question jurisdiction because he fails to
show the applicability of section 1983 or any other federal claim. With the exception of
Officer Roberts, the defendants are private individuals and insurance companies. Mr.
Cook is a private citizen who was involved in a motor vehicle accident with plaintiff. Ms.
Corrida, Ms. Hughes, Ms. Pease, and Mr. Burke are agents or employees of insurance
Companies Adirondack and Progressive. Plaintiff “does not state that the actions of any
defendant occurred as a result of a state-created right or rule of conduct or allege any
facts that would suggest that the actions were even remotely attributable to the state or
any state actor.” Fiamengo v. Wadsworth, No. 3:04 CV 569 SRU, 2004 WL 1638235, a
*3 (D. Conn. July 13, 2004), aff'd, 127 F. App’x 564 (2d Cir. 2005) (dismissing the pro s
plaintiff's purported § 1983 complaint against individual defendants who were
employees of a motor vehicle insurance company where the plaintiff alleged “only that
[the] defendants were involved in his state court litigation and denied him an insurance
settlement as a result of the motor vehicle accident. The court concludes that the
complaint lacks allegations suggesting that any of these defendants is a state actor and
fails to satisfy the first part of the test to state a section 1983 claim.”).

14

In sum, despite claiming the existence of federal question jurisdiction, review of
the complaint reveals that there is no federal question. Although plaintiff purports that
this complaint is brought under section 1983 for violations of his civil rights, other than
Officer Roberts, there are no state actors in this complaint. Further, plaintiff makes no
credible allegation nor provides any factual support to attempt to show that any
| defendant acted under the color of state law. Although plaintiff may disagree with
settlement offers from the insurance companies or seeks redress for the fact that he
was refused certain payments or coverage of medical treatments, such denials by
private actors do not amount to a violation of his constitutional rights. Accordingly,
plaintiff has not demonstrated this Court's federal question jurisdiction.
Finally, although Officer Roberts is a state actor, plaintiff fails to so much as hint
| at a colorable claim for violation of plaintiff's constitutional rights. Even if defendant
Roberts’ alleged failure to inventory damaged items in the vehicle, “file property damage
reports,” or record the inside of plaintiffs vehicle with a body camera as a means of
documenting property damage contributed to plaintiff's inability to properly file a claim
for reimbursement from Mr. Cook’s insurance company, plaintiff fails to set forth any
explanation to how this conduct amounted to a violation of any constitutional rights.
m| Compl. at 4.
Insofar as plaintiff notes that Officer Roberts’ alleged failure to turn on his body
camera was a violation of an unspecified “police policy,” violations of police policies or
rules, without more, does not state a claim under section 1983. Compl. at 4-5. To the
extent plaintiff's complaint could be liberally interpreted as attempting to set forth a clai
for municipal liability pursuant to Monell v. Dep’t of Soc. Servs. Of the City of New York,

15

436 U.S. 658 (1978), plaintiff fails to identify or allege any facts plausibly showing the
existence of a municipal policy or custom of the Town of Guilderland that would amount
to abuses of any of his Constitutional rights. Further, even if plaintiff had alleged that
there exists a police policy, custom, or practice that relates to refusing to inventory
damaged property in motor vehicle accidents or use body cameras to record such
o damage, plaintiff fully fails to explain how such a policy or custom amounted to a
deprivation of his constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72,
80 (2d Cir. 2021); Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The
plaintiff must first prove the existence of a municipal policy or custom in order to show
that the municipality took some action that caused his injuries beyond merely employing
the misbehaving officer.”).
A court ordinarily 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 an
indication that a valid claim might be stated,” Branum v. Clark, 927 F.2d 698, 704-05 (2
Cir. 1991). However, an opportunity to amend is not required where “the problem with
[plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Id.
“Here, as plaintiff cannot cure the defects in his pleading, dismissal with prejudice and
| without opportunity to amend is warranted as it is clear there is no reworking of the
complaint which could entitle plaintiff to relief in this Court.” Caldwell v. Barrier, 1:19-
CV-1516 (BKS/CFH), 2020 WL 918717, at *4 (N.D.N.Y. Feb. 26, 2020). Here, even
applying special solicitude, the Court can conceive of no plausible constitutional

16

violation that could be stated should leave to amend be given.® Accordingly, as plaintiff
has failed to demonstrate diversity jurisdiction or federal question jurisdiction, it is the
undersigned’s opinion that the first “complaint” involving the motor vehicle accident mus
be dismissed with prejudice.
As to the remaining four “complaints” involving workplace incidents, Section 8
° housing issues, eviction, and excessive force; legal malpractice and/or issues with legal
representation; difficulty with requesting records/FOIL concerns; the police refusing to
permit plaintiff to record on his phone and breaking of his phone, the undersigned
recommends that all claims against those remaining defendants be dismissed without
prejudice and with leave to commence new actions,® but without leave to amend in this
case.
I
V. Conclusion
Wherefore, for the reasons stated herein, it is hereby
ORDERED, that plaintiff's in forma pauperis application (Dkt. No. 3) be
GRANTED for purposes of filing only; and it is
RECOMMENDED, that the portion plaintiff's complaint (Dkt. No. 1 at 1-9) against
defendants Keith Cook, Adirondack Insurance Company, Progressive Insurance
Company, Robert Burke, Amanda Hughes, Christine Corrida, Natalie Pease, and Todd

5 Officer Roberts did not damage plaintiff's property and the allegation is merely that he failed to
inventory it, submit property damage-related paperwork for electronics in the vehicle, or record the
damage to the personal property with his body camera.
6 As undersigned does not reach the merits of the remaining complaint, the undersigned makes no
comment as to whether plaintiff's remaining complaints, if he is permitted by the Court and chooses to
bring them as new and separate actions, will be able to successfully proceed past the section 1915 initial
review.
17

Roberts arising out of the August 2019 motor vehicle accident, be DISMISSED with
prejudice and without opportunity to amend; and it is
RECOMMENDED, that plaintiff's second, third, fourth, and fifth “complaints,”
involving all claims against defendants Courtney Maloney, Raybens Cleaning Company;
Jose Marucci, Raytice Spencer, Donna Mackey, Alberto Pueutas, State of New York,
° Empire State Reality, Office of General Services, John and Joseph Does, Schenectady
Municipal Housing Authorities, County of Schenectady, City of Schenectady, Jennifer
Martin, Randolpho Delarosa, Section 8 Inspector, Section 8 Inspector Office Supervisor,
NYS Court Administration, County Public Defenders, Rebecca Bauscher, New York
State Chief Judges of the State of New York, Albany Police Department, City of Albany,
John Does, Todd Monahan, and NYS Office of Court Administration (Dkt. No. 1 at 9-
be DISMISSED without prejudice, and with leave to commence new and
separate actions, but without leave to amending in this action; and it is
ORDERED, that the Clerk of the Court serve this Report-Recommendation &
Order on the plaintiff.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has 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. See Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d
Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).’

7 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
18

Dated: November 4, 2022
Albany, New York
TZ.
Christian F. Hummel
U.S. Magistrate Judge

ry

you to serve and file objections. See 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. See id. § 6(a)(1)(C).
19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315523. Public record. Not legal advice.