Dunn v. Dubiel

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

NICOLE LEE DUNN,

Plaintiff,

5:23-cv-00663

v. (GTS/TWD)

JOHN DUBIEL, et al.,

Defendants.

_____________________________________________

APPEARANCES:

NICOLE LEE DUNN

Plaintiff, pro se

8418 Theodolite Drive

#722

Baldwinsville, NY 13027

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

Presently before the Court is a complaint filed by pro se plaintiff Nicole Lee Dunn

(“Plaintiff”) together with an application to proceed in forma pauperis (“IFP application”). (Dkt.

Nos. 1, 2.)

I. IFP APPLICATION

“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). After reviewing Plaintiff’s IFP

application (Dkt. No. 2), the Court finds she meets this standard. Therefore, Plaintiff’s IFP

application is granted.

II. SUFFICIENCY OF THE COMPLAINT

A. Legal Standard

28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed IFP, “the court shall

dismiss the case at any time if the court determines that – . . . (B) 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)(B).

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 U.S. 319,

325 (1989). To survive dismissal for failure to state a claim, a complaint must plead enough

facts to state a claim 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of

Civil Procedure, which sets forth the general rules of pleading, “does not require detailed factual

allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id.

In determining whether a complaint states a claim upon which relief may be granted, “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). “[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.” Id.

Where a plaintiff is proceeding pro se, the court construes his pleadings “to raise the strongest

arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d

Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “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 Cir. 1983).

Moreover, federal courts have an “independent obligation” to consider the presence or

absence of subject matter jurisdiction sua sponte. Leopard Marine & Trading, Ltd. v. Easy

Street, Ltd., 896 F.3d 174, 181 (2d Cir. 2018) (quoting In re Quigley Co., Inc., 676 F.3d 45, 50

(2d Cir. 2012)). “If subject matter jurisdiction is lacking, the action must be dismissed.” Id.; see

also Fed. R. Civ. P. 12(h)(3). Subject matter jurisdiction can never be waived or forfeited.

Logan v. New York Mun. Ins. Reciprocal for Town of Windsor, New York, No. 3:23-CV-0471

(GTS/ML), 2023 WL 3020195, at *4 (N.D.N.Y. Apr. 20, 2023) (citations omitted).

A federal court exercises limited jurisdiction pursuant to Article III of the Constitution.

Id. “It has subject matter jurisdiction over claims in which: (1) there is a ‘federal question’ in

that a colorable claim arises under the ‘Constitution, laws or treaties of the United States,’ 28

U.S.C. § 1331; and/or if (2) there is complete “diversity of citizenship” between each plaintiff

and all defendants and a minimum of $75,000 in controversy, 28 U.S.C. § 1332.” Id.

The existence of a federal question is governed by the “well-pleaded complaint” rule,

which provides that federal jurisdiction exists only when a federal question is presented on the

face of the plaintiff’s properly pleaded complaint. 28 U.S.C. § 1331. A well-pleaded complaint

presents a federal question where it “establishes either that federal law creates the cause of action

or that the plaintiff's right to relief necessarily depends on a resolution of a substantial question

of federal law.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust, 463 U.S.

1, 9 (1983).

B. Analysis

Plaintiff’s complaint is brought against Defendants John Dubiel, Chadwick Residence1

Board President; Jenni Gratien, Executive Director; Anne Gannon, Administrator/Assistant to

Executive Dir.; and Joy M. King, Case Manager/Supervisor. (Dkt. No. 1.) The complaint is

difficult to decipher and fails to provide sufficient information for the Court to review or for

Defendants to have notice of the claims against them. Moreover, it does not appear this Court

has jurisdiction over the action.

From what the Court can glean, from approximately April 2017 through September 2019,

Defendants repeatedly ignored Plaintiff’s telephone calls and did not respond to her

“concerns/complaints/grievances.” Id. at 2.2 Plaintiff “endured poor quality living conditions,

abusive situations.” Id. She references “discrepancies to Onondaga County Department of

Social Services and erroneous information to monthly rent not paid; therefore a cause to eviction

processes to which [Plaintiff] endured severe hardship per inaccurate information and improper

legal process.” Id. at 5. As for “relief and damages,” Plaintiff seeks, in part, “financial to

resident, disclosure to defendants’ involvement and/or their affiliates etc; possible to order of

protection, release of documents, etc. per my prior requests; and possible to additional financial

[illegible]. Id. at 7.

1 Chadwick Residence appears to be a “Syracuse based nonprofit that provide supportive

housing and supportive services for women and women with children experiencing

homelessness.” See https://giffordfoundation.org/chadwick-residence-housing-as-a-human-right/

(last visited June 13, 2023).

2 Page references to documents identified by docket number are to the numbers assigned by the

CM/ECF docketing system maintained by the Clerk’s Office. Unless otherwise indicated,

excerpts from the record are reproduced exactly as they appear in the original and errors in

spelling, punctuation, and grammar have not been corrected.

The civil cover sheet, which accompanied Plaintiff’s complaint, alleges the basis of the

Court’s jurisdiction as “U.S. Government Plaintiff.” (Dkt. No. 1-1.) As to the brief description

of the case, she writes “identity theft, distress, duress, financial hardship, etc.” Id. She also

selected “Assault, Libel & Slander” and “Racketeer Influenced and Corrupt Organization.” Id.

The Court is mindful that a pro se litigant’s pleadings are held to a less strict standard

than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)

(“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than

other parties.”). However, a court’s initial review of a complaint under § 1915(e) must

encompass the applicable standards of the Federal Rules of Civil Procedure. Rule 8 of the

Federal Rules of Civil Procedure provides that a pleading must contain:

(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, which may include relief in the

alternative or different types of relief.

Fed. R. Civ. P. 8(a). Rule 8’s 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 [and] prepare an adequate

defense.” Hudson v. Artuz, No. 95 Civ. 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)). Moreover, Rule

10 of the Federal Rules of Civil Procedure provides, in part:

(b) Paragraphs; Separate Statements. A party must state its claims

or defenses in numbered paragraphs, each limited as far as

practicable to a single set of circumstances. . . .

Fed. R. Civ. P. 10(b). Rule 10’s purpose is to “provide an easy mode of identification for

referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins, No. 1:22-cv-1248

(MAD/DJS), 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (citation omitted), report and

recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023). In addition, the Court

shall dismiss any action where the complaint fails to allege facts plausibly suggesting subject

matter jurisdiction. Fed. R. Civ. P. 12(h)(3).

A complaint that does not comply with these Rules “presents far too heavy a burden in

terms of defendants’ duty to shape a comprehensive defense and provides no meaningful basis

for the Court to assess the sufficiency of [the plaintiff’s] claims,” and may properly be dismissed

by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996).

Plaintiff’s complaint clearly does not satisfy these requirements. The nature of the

complaint is unclear and Plaintiff has not alleged facts plausibly suggesting that the Court has

subject matter of this action. Given its lack of clarity, the complaint is clearly subject to

dismissal.

Nevertheless, “[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.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.

1991). Although the Court has serious doubts, it is not clear whether better pleading would

permit Plaintiff to assert a cognizable cause of action against Defendants. Out of deference to

Plaintiff’s pro se status, the Court recommends the complaint be dismissed with leave to amend.

The Court advises Plaintiff that should she be permitted to amend her complaint, any

amended pleading she submits must comply with Rules 8 and 10 of the Federal Rules of Civil

Procedure. Any such amended complaint, which shall supersede and replace in its entirety the

previous complaint filed by Plaintiff, must contain sequentially numbered paragraphs containing

only one act of misconduct per paragraph. Thus, if Plaintiff claims that her civil and/or

constitutional rights were violated by more than one defendant, or on more than one occasion,

she should include a corresponding number of paragraphs in her amended complaint for each

such allegation, with each paragraph specifying (i) the alleged act of misconduct; (ii) the date,

including the year, on which such misconduct occurred; (iii) the names of each and every

individual who participated in such misconduct; (iv) where appropriate, the location where the

alleged misconduct occurred; and, (v) the nexus between such misconduct and Plaintiff’s civil

and/or constitutional rights.

Plaintiff is further cautioned that no portion of her prior complaint shall be incorporated

into her amended complaint by reference. Any amended complaint submitted by Plaintiff must

set forth all of the claims she intends to assert against the defendants and must demonstrate that a

case or controversy exists between the Plaintiff and the defendants which Plaintiff has a legal

right to pursue and over which this Court has jurisdiction. If Plaintiff is alleging the defendants

violated a law, she should specifically refer to such law.

WHEREFORE, for the reasons stated herein, it is hereby

ORDERED that Plaintiff’s IFP application (Dkt. No. 2) is GRANTED;3 and it is further

RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be DISMISSED WITH

LEAVE TO AMEND; and it is further

ORDERED that the Clerk serve a copy of this Order and Report-Recommendation,

along with copies of the unpublished decisions cited herein in accordance with Lebron v.

Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.

3 Plaintiff will still be required to pay fees that she may incur in this action, including copying

and/or witness fees.

Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has 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. 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)); 28 U.S.C. § 636(b)(1)

(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

IT IS SO ORDERED.

Dated: June 20, 2023

Syracuse, New York a | /.

Theérése Wiley Dancks

United States Magistrate Judge

* If you are proceeding pro se and are served with this Order and Report-Recommendation by

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

seventeen days from the date the Order and Report-Recommendation 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. 6(a)(1)(C).

2023 WL 3020195 is unclear. (Compare Logan I, Dkt. No. 1 at 1

Only the Westlaw citation is currently available. [referring to “Gregg Story”], Logan I, Dkt. No. 5 at

United States District Court, N.D. New York. 3 [same], Logan I, Dkt. No. 7 at 1 [same], Logan I,

Dkt. No. 13 at 1 [same], and Logan II, Dkt. No. 1

Theresa A. LOGAN, Plaintiff, at 1 [same], with Dkt. No. 1 at 1 [referring to “Greg

v. Story”], and Dkt. No. 1 at 2 [referring to “Greg

NEW YORK MUNICIPAL INSURANCE Storey”].) For purposes of clarity, the Court will

RECIPROCAL, FOR the TOWN OF WINDSOR, refer to him as “Defendant Story.”

NEW YORK; Robert Brink, Snowplow On June 26, 2018, United States Magistrate Judge David E.

Truck Driver; and Greg Story, Wingman Peebles granted Plaintiff's IFP application but recommended

incharge of snowplow blade, Defendants. that Plaintiff's Complaint be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B), with leave to replead because it did not allege

3:23-CV-0471 (GTS/ML)

facts plausibly suggesting that the Court had subject matter

|

jurisdiction over her claims. (Logan I, Dkt. No. 4 at 9.)

Signed April 20, 2023

On July 11, 2018, Plaintiff filed an Amended Complaint.

Attorneys and Law Firms

(Logan I, Dkt. No. 5.) On August 14, 2018, Chief

THERESA A. LOGAN, Plaintiff, Pro Se, 50 Williams Road, United States District Judge Glenn T. Suddaby, accepted

Windsor, New York 13865. and adopted in its entirety Magistrate Judge Peebles's

Report-Recommendation and dismissed Plaintiff's Amended

Complaint. (Logan I, Dkt. No. 6.) Chief Judge Suddaby held

that Plaintiff's Amended Complaint did “not cure the pleading

ORDER and REPORT-RECOMMENDATION

defects identified by Magistrate Judge Peebles in his thorough

MIROSLAV LOVRIC, United States Magistrate Judge Report-Recommendation.” (Id. at 3.) In addition, Chief Judge

Suddaby noted that “the Amended Complaint does not allege

*1 The Clerk has sent this pro se Complaint together with either events occurring within three years of the date of

an application to proceed in forma pauperis filed by Theresa the filing of the Complaint or facts plausibly suggesting an

A. Logan (“Plaintiff”) to the Court for review. (Dkt. Nos. exception to the statute of limitations (such as a continuing

1, 2.) For the reasons discussed below, I grant Plaintiff's in violation).” (Id. at 4.) However, since Plaintiff did not have

forma pauperis application (Dkt. No. 2) and recommend that the benefit of Chief Judge Suddaby's Decision and Order

Plaintiff's Complaint (Dkt. No. 1) be dismissed without leave when she filed her Amended Complaint on July 11, 2018,

to amend. she was given “one final chance to correct these pleading

defects.” (Id. at 5 [emphasis in original].)

I. PROCEDURAL HISTORY

On September 14, 2018, Plaintiff filed a Second Amended

On May 18, 2018, Plaintiff commenced a pro se action in

Complaint. (Logan I, Dkt. No. 7.) On September 28,

the Northern District of New York, Case No. 3:18-CV-0593

2018, Magistrate Judge Peebles recommended that Plaintiff's

(GTS/DEP) (“Logan I”) against the Town of Windsor, Robert

Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)

Brinks, Gregg Story,1 and New York Municipal Insurance

(B), without leave to replead. (Logan I, Dkt. No. 8.)

Reciprocal (“Defendants”) asserting claims of common law

assault and battery based on injuries that she sustained on *2 On October 19, 2018, Plaintiff filed a Third Amended

or about March 7, 2011, when she was allegedly struck by Complaint. (Logan I, Dkt. No. 13.) On December 17, 2018,

debris thrown in her direction by a snowplow operated by Chief Judge Suddaby accepted and adopted Magistrate Judge

Defendants Brinks and Story, who were employees of the Peebles's Report-Recommendation in its entirety, dismissed

Town of Windsor at the time. (Logan I, Dkt. No. 4 at 2.) Plaintiff's Third Amended Complaint, and certified that an

appeal would not be taken in good faith pursuant to 28 U.S.C.

§ 1915(a)(3). (Logan I, Dkt. No. 14.)

I, Dkt. No. 16.) On June 5, 2019, the Second Circuit issued 1994)).

an order dismissing Plaintiff's appeal because it “lacks an Plaintiff also filed an application for leave to proceed in forma

arguable basis either in law or in fact.” (Logan I, Dkt. No. 18.) pauperis. (Dkt. No. 2.)

On December 20, 2019, Plaintiff commenced another pro se

action against Defendants in the Northern District of New III. PLAINTIFF'S APPLICATION TO PROCEED IN

York, Case No. 3:19-CV-1590 (GTS/ML) (“Logan II”). That FORMA PAUPERIS

action also related to the alleged incident that occurred on When a civil action is commenced in a federal district court,

March 7, 2011, when Plaintiff was struck by debris thrown in the statutory filing fee, currently set at $402, must ordinarily

her direction by a snowplow operated by Defendants Brinks be paid. 28 U.S.C. § 1914(a). A court is authorized, however,

and Story, who were employees of the Town of Windsor to permit a litigant to proceed in forma pauperis status if a

at the time. (Logan II, Dkt. No. 1.) Plaintiff asserted one party “is unable to pay” the standard fee for commencing an

claim of negligence based on the operation of the snowplow, action. 28 U.S.C. § 1915(a)(1).3 After reviewing Plaintiff's in

and one claim of defamation based on Defendants’ attorney's forma pauperis application (Dkt. No. 2), the Court finds that

statements. (Id.) Plaintiff meets this standard. Therefore, Plaintiff's application

to proceed in forma pauperis is granted.4

On April 23, 2020, the undersigned granted Plaintiff's motion

for leave to proceed in forma pauperis and recommended

that Plaintiff's claims be dismissed without leave to amend. 3 The language of that section is ambiguous because

(Logan II, Dkt. No. 5.) On July 20, 2020, Chief United States it suggests an intent to limit availability of IFP

District Judge Glenn T. Suddaby accepted and adopted the status to prison inmates. See 28 U.S.C. § 1915(a)

undersigned's report-recommendation in its entirety. (Logan (1) (authorizing the commencement of an action

II, Dkt. No. 12.) Chief Judge Suddaby dismissed Plaintiff's without prepayment of fees “by a person who

Complaint in Logan II without leave to amend. (Id.; Logan submits an affidavit that includes a statement of all

II, Dkt. No. 13.) assets such prisoner possesses”). The courts have

construed that section, however, as making IFP

On July 29, 2020, Plaintiff filed a notice of appeal in Logan status available to any litigant who can meet the

II. (Logan II, Dkt. No. 14.) On March 19, 2021, the Second governing financial criteria. Hayes v. United States,

Circuit affirmed the judgment of the district court. (Logan II, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v.

Dkt. No. 18.) City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y.

2002).

II. PLAINTIFF'S ALLEGATIONS 4 Plaintiff is reminded that, although the application

Construed as liberally2 as possible, Plaintiff's Complaint to proceed in forma pauperis has been granted, she

alleges that she sustained injuries on or about March 7, will still be required to pay fees that she may incur

2011, when she was struck by debris thrown in her direction in this action, including copying and/or witness

by a snowplow operated by Defendants Brinks and Story, fees.

who were employees of the Town of Windsor at the time. *3 Plaintiff is advised that the ability to litigate an action

(See generally Dkt. No. 1.) Plaintiff alleges that as a result without prepayment of fees is a privilege that can be denied,

of these injuries, she sustained permanent physical damage, revoked, or limited based upon a showing of prior abuses.

resigned from her job, and has become financially stressed. See In re Anderson, 511 U.S. 364, 365-66 (1994) (denying

(Id.) Plaintiff does not appear to assert any causes of action the pro se petitioner's request for leave to proceed IFP where

and seeks at least $75,000.00 in damages. (Id.) the Court found that, like the previous twenty-two petitions

filed during the three immediately preceding years, the instant

2 The court must interpret pro se complaints to petition was “patently frivolous”); see also Cuoco v. United

raise the strongest arguments they suggest. Soto v. States Bureau of Prisons, 328 F. Supp. 2d 463, 467 (S.D.N.Y.

Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting 2004) (“The ability to proceed IFP is a privilege provided

for the benefit of indigent persons.”). The authority of a

in the permissive, rather than compulsory, language of the is immune from such relief.” 28 U.S.C. § 1915(e)(2).

controlling statute, which provides that “any court of the

United States may authorize the commencement, prosecution In addition, the Court shall dismiss any action where the

or defense of any suit, action or proceeding, civil or criminal, complaint fails to allege facts plausibly suggesting subject

or appeal therein, without prepayment of fees or security matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see Steel Co. v.

therefor[.]” 28 U.S.C. § 1915(a)(1) (emphasis added); In Citizens for a Better Env't, 523 U.S. 83, 88-89 (1988) (holding

re McDonald, 489 U.S. 180, 183 (1989). For this reason, that subject matter jurisdiction is a “threshold question that

courts are regarded as possessing discretionary authority to must be resolved ... before proceeding to the merits.”);

deny IFP status to litigants who have abused the privilege. Humphrey v. Syracuse Police Dep't, 758 F. App'x 205, 205-06

See Hurt v. Soc. Sec. Admin., 544 F.3d 308, 309-310 (D.C. (2d Cir. 2019) (citing United States v. Bond, 762 F.3d 255,

Cir. 2008) (quoting Butler v. Dep't of Justice, 492 F.3d 440, 263 (2d Cir. 2014)) (“[b]efore deciding any case on the merits,

444-45 (D.C. Cir. 2007)) (“This Circuit grants IFP status to a district court must determine that it has subject matter

various plaintiffs, but asserts its discretion to deny or revoke jurisdiction over the matter.”); Koziel v. City of Yonkers,

this privilege for abusive litigants, looking to ‘the number, 352 F. App'x 470, 471 (2d Cir. 2009) (summary order)

content, frequency, and disposition of their previous filings[.]’ (affirming sua sponte dismissal of complaint on initial review

”). for lack of subject matter); Talley v. LoanCare Serv., Div. of

FNF, 15-CV-5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug.

Plaintiff's litigation history in this district suggests that she is 31, 2018) (dismissing on initial review, action challenging

on the brink of being found to have abused the privilege of state court mortgage foreclosure judgment because the court

proceeding IFP. In fact, United States District Judge Glenn lacked jurisdiction); Eckert v. Schroeder, Joseph & Assoc.,

T. Suddaby cautioned Plaintiff in Logan II that, “further 364 F. Supp. 2d 326, 327 (W.D.N.Y. 2005) (citing Hughes

unmerited filings by her will likely result in an Order for her v. Patrolmen's Benevolent Ass'n of the City of N.Y., Inc., 850

to Show Cause why a Pre-Filing Order should not be issued F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967

against her, enjoining her from filing any future documents (1988)) (“[a] court shall, sua sponte, dismiss a complaint for

in this Court as a pro se litigant without leave of the Court.” lack of subject matter jurisdiction as soon as it is apparent that

Logan v. Town of Windsor, New York, 19-CV-1590, 2020 WL it lacks subject matter jurisdiction.”).

4049943, at *1 (N.D.N.Y. July 20, 2020) (Suddaby, C.J.).

*4 In order to state a claim upon which relief can be granted,

Common to the other dismissed actions filed by Plaintiff a complaint must contain, inter alia, “a short and plain

in this district (including, as will be discussed below, the statement of the claim showing that the pleader is entitled

current Complaint under consideration in this report) is her to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a

failure to include factual allegations in her complaints that plaintiff “show” that he or she is entitled to relief means that

demonstrate that the Court has jurisdiction to consider her a complaint “must contain sufficient factual matter, accepted

claims. Accordingly, Plaintiff is hereby cautioned that (1) as true, to ‘state a claim to relief that is plausible on its

proceeding IFP is a privilege that is extended to litigants at the face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis

discretion of the court, and (2) any further filing of patently added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

frivolous lawsuits may result in the denial of any request to [2007]). “Determining whether a complaint states a plausible

proceed IFP in an action and/or a recommendation to the claim for relief ... requires the ... court to draw on its judicial

Chief District Judge that a filing injunction be issued against experience and common sense.... [W]here the well-pleaded

Plaintiff, barring her from filing any future lawsuits in this facts do not permit the court to infer more than the mere

district without prior permission. 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).

IV. LEGAL STANDARD FOR INITIAL REVIEW OF

COMPLAINT “In reviewing a complaint ... the court must accept the

“Notwithstanding any filing fee, or any portion thereof, that material facts alleged in the complaint as true and construe all

may have been paid, the court shall dismiss the case at any reasonable inferences in the plaintiff's favor.” Hernandez v.

time if the court determines that ... the action ... (i) is frivolous Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).

allegations contained in a complaint is inapplicable to legal examine their own jurisdiction sua sponte at every stage of

conclusions. Threadbare recitals of the elements of a cause the litigation. ACCD Global Agric., Inc., 2013 WL 840706,

of action, supported by mere conclusory statements, do not at *1; see In re Tronox, Inc., 855 F.3d 84, 85 (2d Cir. 2017)

suffice.” Iqbal, 556 U.S. at 678. (federal courts have an independent obligation to consider the

presence or absence of subject matter jurisdiction sua sponte).

Courts are “obligated to construe a pro se complaint liberally.”

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also *5 A federal court exercises limited jurisdiction pursuant

Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) to Article III of the Constitution. It has subject matter

(reading the plaintiff's pro se complaint “broadly, as we jurisdiction over claims in which: (1) there is a ‘federal

must” and holding that the complaint sufficiently raised a question’ in that a colorable claim arises under the

cognizable claim). “[E]xtreme caution should be exercised in ‘Constitution, laws or treaties of the United States,’ 28

ordering sua sponte dismissal of a pro se complaint before the U.S.C. § 1331; and/or if (2) there is complete “diversity of

adverse party has been served and [the] parties ... have had an citizenship” between each plaintiff and all defendants and

opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, a minimum of $75,000 in controversy, 28 U.S.C. § 1332.

41 (2d Cir. 1983).

Gonzalez v. Ocwen Home Loan Servicing, 74 F. Supp. 3d

504, 511-12 (D. Conn. 2015) (quoting Da Silva v. Kinsho

The Court, however, also has an overarching obligation

Int'l Corp., 229 F.3d 358, 363 (2d Cir. 2000) (delineating two

to determine that a claim is not legally frivolous before

categories of subject matter jurisdiction) (footnote omitted)),

permitting a pro se plaintiff's complaint to proceed. See, e.g.,

reconsideration denied, 14-CV-0053, 2015 WL 2124365 (D.

Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d

Conn. May 6, 2015).

362, 363 (2d Cir. 2000) (holding that a district court may

sua sponte dismiss a frivolous complaint, notwithstanding

The existence of a federal question is governed by the

the fact that the plaintiff paid the statutory filing fee).

“well-pleaded complaint” rule, which provides that federal

“Legal frivolity ... occurs where ‘the claim is based on an

jurisdiction exists only when a federal question is presented

indisputably meritless legal theory [such as] when either the

on the face of the plaintiff's properly pleaded complaint.

claim lacks an arguable basis in law, or a dispositive defense

28 U.S.C. § 1331. A well-pleaded complaint presents a

clearly exists on the face of the complaint.” Aguilar v. United

federal question where it “establishes either that federal law

States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2

creates the cause of action or that the plaintiff's right to relief

(D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack

necessarily depends on a resolution of a substantial question

Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also

of federal law.” Franchise Tax Bd. of State of Cal. v. Constr.

Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is

Laborers Vacation Trust, 463 U.S. 1, 9 (1983).

proper only if the legal theory ... or factual contentions lack an

arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995)

Here, the Complaint explicitly left blank whether the basis

(“[T]he decision that a complaint is based on an indisputably

for federal court jurisdiction is based on a federal question

meritless legal theory for purposes of dismissal under section

or diversity of citizenship. (Dkt. No. 1 at 3.) Instead, it again

1915(d), may be based upon a defense that appears on the face

appears as though Plaintiff believes she can bring her claims

of the complaint.”).

in federal court based on a friend's referral, despite the Court

rejecting this contention in Logan II. (Dkt. No. 1 at 11; see

V. ANALYSIS also Logan II, Dkt. No. 1 at 3; Logan II, Dkt. No. 5 at 9-10.)

After careful consideration, I recommend dismissal of

Plaintiff's claims because the Complaint fails to allege Notwithstanding, the Civil Cover Sheet, which accompanied

facts plausibly suggesting that the Court has subject matter Plaintiff's Complaint, alleges that the basis for the Court's

jurisdiction. jurisdiction is that it presents a federal question. (Dkt. No.

1, Attach. 1.) However, the Complaint fails to cite any

Subject matter jurisdiction can never be waived or forfeited. federal statute, treaty, or the United States Constitution as

ACCD Global Agric., Inc. v. Perry, 12-CV-6286, 2013 WL a basis for Plaintiff's claims. Merely because the events

840706, at *1 (S.D.N.Y. March 1, 2013) (quoting Dumann giving rise to Plaintiff's claims occurred within the Northern

on the factual allegations contained in the Complaint is also Fed. R. Civ. P. 15(a)(2) (“The court should freely give

negligence, which is a New York State common-law tort leave when justice so requires.”). An opportunity to replead

governed by state law. As currently pleaded, this state- is not required, however, where “the problem with [the

law claim does not raise any federal question. Logan plaintiff's] causes of action is substantive” such that “better

v. Town of Windsor, New York, 19-CV-1590, 2020 WL pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99,

1950860, at *5 (N.D.N.Y. Apr. 23, 2020) (Lovric, M.J.) 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding

(recommending dismissal of Plaintiff's negligence and L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a

defamation claims based on the same factual assertions plaintiff is unable to allege any fact sufficient to support its

alleged here), report and recommendation adopted by, 2020 claim, a complaint should be dismissed with prejudice.”).

WL 4049943 (N.D.N.Y. July 20, 2020) (Suddaby, C.J.); see Stated differently, “[w]here it appears that granting leave to

Wilson v. Neighborhood Restore Dev., 18-CV-1172, 2018 amend is unlikely to be productive, ... it is not an abuse of

WL 2390143, at *3 (E.D.N.Y. May 18, 2018) (dismissing discretion to deny leave to amend.” Ruffolo v. Oppenheimer

the complaint for lack of subject matter jurisdiction where & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v.

the plaintiffs alleged claims of breach of contract, breach Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.

of warranty of habitability, negligence, personal injury, and 22, 1997) (Pooler, J.).5

fraud); Lindstrom v. Transervice Logistics Inc., 17-CV-6988,

2018 WL 1121598, at *2 (E.D.N.Y. Feb. 27, 2018) (sua 5

See also Carris v. First Student, Inc., 132 F. Supp.

sponte dismissing the complaint for lack of subject matter

3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby,

jurisdiction, where the plaintiffs alleged claims pursuant to

C.J.) (explaining that the standard set forth in

negligence and loss of consortium based on a multi-vehicle

Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,

automobile accident that occurred on Interstate 78); West v.

796 (2d Cir. 1999)—that the Court should grant

Sanchez, 17-CV-2482, 2017 WL 1628887, at *2 (E.D.N.Y.

leave to amend “unless the court can rule out any

May 1, 2017) (finding no federal question jurisdiction where

possibility, however unlikely it might be, that an

the “allegations appear to amount to a state-law personal

amended complaint would be successful in stating

injury claim”); White v. Ercole, 06-CV-1136, 2009 WL

a claim”—is likely not an accurate recitation of the

602890, at *5 (S.D.N.Y. Mar. 3, 2009) (negligence claim is a

governing law after Bell Atl. Corp. v. Twombly, 550

matter of state law).

U.S. 544 (2007)), rev'd on other grounds, 682 F.

App'x 30.

*6 Moreover, there is no diversity of citizenship sufficient

to assert jurisdiction in this case pursuant to 28 U.S.C. § 1332. Here, leave to amend would be futile. As a result, I

(Dkt. No. 1 at 1-2 [alleging that Plaintiff is a citizen of New recommend that Plaintiff's claims be dismissed without leave

York State and that Defendants Brink and Story are citizens to amend. See Vazquez v. New York, 22-CV-0196, 2022

of New York State]); see Moore v. Brooklyn Hosp. Ctr., 22- WL 2390248, at *6 (N.D.N.Y. June 30, 2022) (Hummel,

CV-4208, 2022 WL 16798230, at *2 (E.D.N.Y. Nov. 8, 2022) M.J.) (recommending dismissal without leave to amend the

(“Because all parties to the action are citizens of New York, plaintiff's defamation claim because, inter alia, “plaintiff has

diversity of citizenship is lacking, and the requirements of 28 not established jurisdiction.”), report and recommendation

U.S.C. § 1332 are not met.”). adopted by, 2022 WL 3100553 (N.D.N.Y. Aug. 4, 2022)

(Suddaby, C.J.).

After carefully reviewing Plaintiff's Complaint and

considering other possible bases for jurisdiction, I find that ACCORDINGLY, it is

there is no basis for jurisdiction over Plaintiff's Complaint. As

a result, I recommend that Plaintiff's Complaint be dismissed. ORDERED that Plaintiff's application to proceed in forma

pauperis (Dkt. No. 2) is GRANTED only for purposes of

filing and any appeal unless the trial court certifies in

VI. OPPORTUNITY TO REPLEAD writing that the appeal is not taken in good faith; and it is

Generally, a court should not dismiss claims contained in a further respectfully

complaint filed by a pro se litigant without granting leave to

replead at least once “when a liberal reading of the complaint

PREJUDICE BUT WITHOUT LEAVE TO REPLEAD (1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v.

Plaintiff's Complaint (Dkt. No. 1) because the Court lacks Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of

subject matter jurisdiction; and it is further Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

*7 ORDERED that the Clerk of the Court shall file a copy 7 If you are proceeding pro se and served with this

of this order, report, and recommendation on the docket of report, recommendation, and order by mail, three

this case and serve a copy upon the parties in accordance with additional days will be added to the fourteen-day

the local rules.6 period, meaning that you have seventeen days from

the date that the report, recommendation, and order

6 The Clerk shall also provide Plaintiff with copies of was mailed to you to serve and file objections. Fed.

R. Civ. P. 6(d). If the last day of that prescribed

all unreported decisions cited herein in accordance

period falls on a Saturday, Sunday, or legal holiday,

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

then the deadline is extended until the end of the

(per curiam).

next day that is not a Saturday, Sunday, or legal

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties holiday. Fed. R. Civ. P. 6(a)(1)(C).

have fourteen days within which to file written objections

to the foregoing report.7 Such objections shall be filed All Citations

with the Clerk of the Court. FAILURE TO OBJECT

Slip Copy, 2023 WL 3020195

TO THIS REPORT WITHIN FOURTEEN DAYS WILL

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

1998 WL 832708 By Judge Rakoff's Order dated April 14, 1998, this case was

Only the Westlaw citation is currently available. referred to me for general pretrial purposes and for a Report

United States District Court, S.D. New York. and Recommendation on any dispositive motion. Presently

pending is defendants' renewed motion to dismiss. Plaintiff

Theodore HUDSON, Plaintiff, filed a reply on July 6, 1998. For the reasons discussed

v. below, plaintiff's complaint is dismissed without prejudice,

Christopher ARTUZ, Warden Philip and plaintiff is granted leave to replead within thirty (30) days

Coombe, Commissioner Sergeant of the date of the entry of this order.

Ambrosino Doctor Manion Defendants.

No. 95 CIV. 4768(JSR). FACTS

|

Nov. 30, 1998. Plaintiff alleges that he was assaulted by four inmates in the

Green Haven Correctional Facility mess hall on March 14,

Attorneys and Law Firms 1995. (Complaint at 4.) He alleges that he was struck with

a pipe and a fork while in the “pop room” between 6:00

Mr. Theodore Hudson, Great Meadow Correctional Facility,

p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends

Comstock.

that the attack left him with 11 stitches in his head, chronic

Alfred A. Delicata, Esq., Assistant Attorney General, New headaches, nightmares, and pain in his arm, shoulder, and

York. back. (Id.) Plaintiff also states that Sergeant Ambrosino

“failed to secure [the] area and separate” him from his

attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz

is that he “fail [sic] to qualify as warden.” (Complaint at

MEMORANDUM AND ORDER

4.) Plaintiff names Commissioner Coombes as a defendant,

BUCHWALD, Magistrate J. alleging Coombes “fail [sic] to appoint a qualified warden

over security.” (Amended Complaint at 5.) Plaintiff further

*1 Plaintiff Theodore Hudson filed this pro se action alleges that Dr. Manion refused to give him pain medication.

pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's (Complaint at 5.) Plaintiff seeks to “prevent violent crimes”

complaint alleges defendants violated his constitutional rights and demands $6,000,000 in damages. (Amended Complaint

while he was an inmate at Green Haven Correctional at 5.)

Facility.1 Plaintiff's complaint was dismissed sua sponte by

Judge Thomas P. Griesa on June 26, 1995 pursuant to 28 Defendants moved to dismiss the complaint, arguing that: (1)

U.S.C. § 1915(d). On September 26, 1995, the Second Circuit the Eleventh Amendment bars suit against state defendants

Court of Appeals vacated the judgment and remanded the case for money damages; (2) the plaintiff's allegations fail to state

to the district court for further proceedings. a claim for a constitutional violation; (3) the defendants are

qualifiedly immune from damages; and (4) plaintiff must

1 Plaintiff is presently incarcerated at Sullivan exhaust his administrative remedies before bringing this suit.

Correctional Facility.

The case was reassigned to Judge Barbara S. Jones on

DISCUSSION

January 31, 1996. Defendants moved to dismiss the complaint

pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996. I find that plaintiff's complaint runs afoul of Rules 8 and

Thereafter, the case was reassigned to Judge Jed S. Rakoff 10 of the Federal Rules of Civil Procedure and dismiss the

on February 26, 1997. On February 26, 1998, Judge Rakoff complaint without prejudice and with leave to amend. Federal

granted defendants' motion to dismiss, but vacated the Rule 8 requires that a complaint contain “a short and plain

judgment on April 10, 1998 in response to plaintiff's motion statement of the claim showing that the pleader is entitled to

for reconsideration in which plaintiff claimed that he never relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to

received defendants' motion to dismiss.

prepare an adequate defense.” Powell v. Marine Midland cases in which the court dismisses a pro se complaint for

Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. failure to comply with Rule 8, it should give the plaintiff leave

Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin to amend when the complaint states a claim that is on its

v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d

“principal function of pleadings under the Federal Rules is to Cir.1995).

give the adverse party fair notice of the claim asserted so as

to enable him to answer and prepare for trial”). In determining whether a nonfrivolous claim is stated, the

complaint's allegations are taken as true, and the “complaint

*2 Rule 10 of the Federal Rules of Civil Procedure requires, should not be dismissed for failure to state a claim unless

inter alia, that the allegations in a plaintiff's complaint be it appears beyond doubt that the plaintiff can prove no set

made in numbered paragraphs, each of which should recite, of facts in support of his claim which would entitle him to

as far as practicable, only a single set of circumstances. relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,

Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule 2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to

10 also requires that each claim upon which plaintiff seeks be liberally construed in his favor when determining whether

relief be founded upon a separate transaction or occurrence. he has stated a meritorious claim. See Haines v. Kerner, 404

Id.2 The purpose of Rule 10 is to “provide an easy mode U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it

of identification for referring to a particular paragraph in a is difficult to determine the actual substance of the plaintiff's

prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL complaint, outright dismissal without leave to amend the

392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright & complaint is generally disfavored as an abuse of discretion.

A. Miller, Federal Practice and Procedure, § 1323 at 735 See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of

(1990)). New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.

Mar.12, 1997).

2 Rule 10 states:

Here, plaintiff's pro se complaint fails to satisfy the

(b) Paragraphs; Separate Statements. All

requirements of Federal Rules 8 and 10. The complaint is

averments of claim or defense shall be made in

often illegible and largely incomprehensible, scattering what

numbered paragraphs, the contents of each of

appear to be allegations specific to plaintiff within a forest

which shall be limited as far as practicable to a

of headnotes copied from prior opinions. Defendants have

statement of a single set of circumstances; and

answered with a boilerplate brief, which is perhaps all a

a paragraph may be referred to by number in all

defendant can do when faced with such a complaint. The

succeeding pleadings. Each claim founded upon

Court is left with an insurmountable burden in attempting to

a separate transaction or occurrence and each

make a reasoned ruling on such muddled pleadings.

defense other than denials shall be stated in a

separate count or defense whenever a separation

*3 Although plaintiff's complaint is substantially

facilitates the clear presentation of the matters set

incomprehensible, it appears to plead at least some claims

forth.

that cannot be termed frivolous on their face. For example,

A complaint that fails to comply with these pleading rules plaintiff clearly alleges that inmates assaulted him and that

“presents far too heavy a burden in terms of defendants' Dr. Manion refused to provide him medical attention. He also

duty to shape a comprehensive defense and provides no appears to assert that Sergeant Ambrosino failed to protect

meaningful basis for the Court to assess the sufficiency of” him from the attack or take steps to prevent future attacks.

a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355 (Plaintiff's Reply at 5). It is well established that an inmate's

(N.D.N.Y.1996). It may therefore be dismissed by the court. constitutional rights are violated when prison officials act

Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When with deliberate indifference to his safety or with intent to

a complaint does not comply with the requirement that it cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d

be short and plain, the court has the power to, on its own Cir.1991). It is similarly well established that an inmate's

initiative, ... dismiss the complaint”). Dismissal, however, is constitutional rights are violated when a prison doctor denies

“usually reserved for those cases in which the complaint is his request for medical care with deliberate indifference to

so confused, ambiguous, vague, or otherwise unintelligible the inmate's serious medical needs. Estelle v. Gamble, 429

Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. Plaintiff's complaint shall contain the facts specific to the

incidents plaintiff alleges occurred, and not any facts relating

1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although

to any case that has been decided previously by a court of law.

plaintiff provides few facts to support his allegations, I

Plaintiff's complaint shall also contain a clear statement of the

disagree with defendants' assertion that outright dismissal is

relief he seeks in addition to monetary damages.

appropriate because it “appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.” Defendant's Memorandum at 5 (quoting

Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d CONCLUSION

80 (1957)).

For the reasons set forth above, plaintiff's complaint is

Because plaintiff's complaint does not comply with Rules 8 dismissed without prejudice, and plaintiff is granted leave to

and 10, it is hereby dismissed without prejudice, and plaintiff replead within thirty (30) days of the date of the entry of this

is granted leave to replead within thirty (30) days of the date Order.

of the entry of this Order. In drafting his second amended

complaint, plaintiff is directed to number each paragraph and IT IS SO ORDERED.

order the paragraphs chronologically, so that each incident in

which he alleges a constitutional violation is described in the

All Citations

order that it occurred. Plaintiff is also directed to specifically

describe the actions of each defendant that caused plaintiff Not Reported in F.Supp.2d, 1998 WL 832708

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

2022 WL 17517312 District before the court may permit the plaintiff to proceed

Only the Westlaw citation is currently available. with this action in forma pauperis. See id.

United States District Court, N.D. New York.

2 To determine whether an action is frivolous, a court

Manetirony CLERVRAIN, Plaintiff, must look to see whether the complaint “lacks an

v. arguable basis either in law or in fact.” Neitzke v.

Jonathan ROBBINS, et al., Defendants. Williams, 490 U.S. 319, 325 (1989).

1:22-CV-1248 (MAD/DJS) Likewise, under 28 U.S.C. § 1915A, a court must review

| any “complaint in a civil action in which a prisoner seeks

Signed December 8, 2022 redress from a governmental entity or officer or employee of

a governmental entity” and must “identify cognizable claims

Attorneys and Law Firms or dismiss the complaint, or any portion of the complaint,

if the complaint ... is frivolous, malicious, or fails to state a

MANETIRONY CLERVRAIN, Plaintiff, Pro Se, Anderson, claim upon which relief may be granted; or ... seeks monetary

IN 46013. relief from a defendant who is immune from such relief.” 28

U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116

(2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636,

REPORT-RECOMMENDATION and ORDER 639 (2d Cir. 2007) (stating that both sections 1915 and 1915A

are available to evaluate pro se prisoner complaints).

DANIEL J. STEWART, United States Magistrate Judge

In reviewing a pro se complaint, the court has a duty to show

*1 The Clerk has forwarded for review what has been

liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d

docketed as a civil complaint filed by Plaintiff. Dkt. No. 1,

605, 606 (2d Cir. 1990) (per curiam), and should exercise

Compl. Plaintiff has not paid the filing fee but has submitted

“extreme caution ... in ordering sua sponte dismissal of a

an application to proceed in forma pauperis (“IFP”), Dkt. No.

pro se complaint before the adverse party has been served

2, which the Court has granted.1

and both parties (but particularly the plaintiff) have had an

opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,

1 Plaintiff has also moved for leave to file 41 (2d Cir. 1983) (internal citations omitted). Therefore, a

electronically. Dkt. No. 3. Given the recommended court should not dismiss a complaint if the plaintiff has stated

disposition of this case, that Motion is denied with “enough facts to state a claim to relief that is plausible on its

leave to renew if Plaintiff files a complaint that face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

survives review under section 1915. “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

I. SUFFICIENCY OF THE COMPLAINT alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Bell Atl. Corp. v. Twombly, 550 U.S. at 556).

A. Governing Legal Standard

*2 Although a court should construe the factual allegations

28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to in the light most favorable to the plaintiff, “the tenet that

proceed in forma pauperis, “(2) ... the court shall dismiss a court must accept as true all of the allegations contained

the case at any time if the court determines that – ... (B) in a complaint is inapplicable to legal conclusions.” Id.

the action ... (i) is frivolous or malicious; (ii) fails to state a “Threadbare recitals of the elements of a cause of action,

claim on which relief may be granted; or (iii) seeks monetary supported by mere conclusory statements, do not suffice.” Id.

relief against a defendant who is immune from such relief.” 28 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here

U.S.C. § 1915(e)(2)(B).2 Thus, even if a plaintiff meets the the well-pleaded facts do not permit the court to infer more

financial criteria to commence an action in forma pauperis, it than the mere possibility of misconduct, the complaint has

is the court's responsibility to determine whether the plaintiff alleged - but it has not show[n] - that the pleader is entitled

more than an unadorned, the-defendant-unlawfully-harmed- FED. R. CIV. P. 10(b). The purpose of Rule 10 is to “provide

me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell an easy mode of identification for referring to a particular

Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading paragraph in a prior pleading[.]” Sandler v. Capanna, 1992

that only “tenders naked assertions devoid of further factual WL 392597, at *3 (E.D. Pa. Dec. 17, 1992).

enhancement” will not suffice. Id. (internal quotation marks

and alterations omitted). A complaint that fails to comply with basic pleading

requirements presents too heavy a burden for defendants to

craft a defense “and provides no meaningful basis for the

Court to assess the sufficiency of [the plaintiff's] claims,” and

B. Analysis of the Complaint may properly be dismissed. Gonzales v. Wing, 167 F.R.D. 352,

355 (N.D.N.Y. 1996).

A court's initial review of a complaint under § 1915(e) must

encompass the applicable standards of the Federal Rules

Plaintiff's Complaint clearly does not satisfy these

of Civil Procedure. Rule 8 of the Federal Rules of Civil

requirements. The nature of the Complaint is unclear. The

Procedure provides that a pleading must contain:

Complaint recites a wide variety of federal statutes and

(1) a short and plain statement of the grounds for the court's case law, but a thorough review of the main Complaint and

jurisdiction ...; the numerous attachments does not provide clarity as to

what federal claim Plaintiff seeks to pursue in this Court.

(2) a short and plain statement of the claim showing that It is unclear what relationship the individuals identified by

the pleader is entitled to relief; and Plaintiff as Defendants have to Plaintiff and how he alleges

they violated his rights.

(3) a demand for the relief sought, which may include relief

in the alternative or different types of relief. Given its lack of clarity, the Complaint is clearly subject to

dismissal. “[A] court should not dismiss a complaint filed

FED. R. CIV. P. 8(a). The purpose of Rule 8 “is to give

fair notice of the claim being asserted so as to permit the by a pro se litigant without granting leave to amend at least

adverse party the opportunity to file a responsive answer [and] once ‘when a liberal reading of the complaint gives any

prepare an adequate defense.” Hudson v. Artuz, 1998 WL indication that a valid claim might be stated.’ ” Bruce v.

832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Tompkins Cty. Dep't of Soc. Servs. ex rel. Kephart, 2015 WL

Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)). 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v.

Moreover, Rule 10 of the Federal Rules of Civil Procedure Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Accordingly, the

provides, in part: Court recommends that the Complaint be dismissed, but that

Plaintiff be afforded an opportunity to amend.

*3 The Court advises Plaintiff that should he be permitted

(b) Paragraphs; Separate

to amend his Complaint, any amended pleading she

Statements. A party must state its

submits must comply with Rules 8 and 10 of the Federal

claims or defenses in numbered

Rules of Civil Procedure. Any such amended complaint,

paragraphs, each limited as far

which shall supersede and replace in its entirety the

as practicable to a single set of

previous Complaint filed by Plaintiff, must contain

circumstances. A later pleading may

sequentially numbered paragraphs containing only one

refer by number to a paragraph in an

act of misconduct per paragraph. Thus, if Plaintiff claims

earlier pleading. If doing so would

that his civil and/or constitutional rights were violated by

promote clarity, each claim founded on

more than one defendant, or on more than one occasion,

a separate transaction or occurrence –

he should include a corresponding number of paragraphs

and each defense other than a denial –

in his amended complaint for each such allegation, with

must be stated in a separate count or

each paragraph specifying (i) the alleged act of misconduct;

defense.

(ii) the date, including the year, on which such misconduct

occurred; (iii) the names of each and every individual who

nexus between such misconduct and Plaintiff's civil and/or Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen

constitutional rights. (14)3 days within which to file written objections to the

foregoing report. Such objections shall be filed with the Clerk

Plaintiff is further cautioned that no portion of his prior of the Court. FAILURE TO OBJECT TO THIS REPORT

Complaint shall be incorporated into his amended complaint WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

by reference. Any amended complaint submitted by Plaintiff APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89

must set forth all of the claims he intends to assert against the (2d Cir. 1993) (citing Small v. Sec'y of Health and Human

defendants and must demonstrate that a case or controversy Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §

exists between the Plaintiff and the defendants which Plaintiff 636(b)(1); FED. R. CIV. P. 72 & 6(a).

has a legal right to pursue and over which this Court has

jurisdiction. If Plaintiff is alleging that the named defendant 3 If you are proceeding pro se and are served with

violated a law, he should specifically refer to such law. 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

II. CONCLUSION mailed to you to serve and file objections. FED. R.

CIV. P. 6(d). If the last day of that prescribed period

For the reasons stated herein, it is hereby falls on a Saturday, Sunday, or legal holiday, then

the deadline is extended until the end of the next

RECOMMENDED, that Plaintiff's Complaint be day that is not a Saturday, Sunday, or legal holiday.

DISMISSED with leave to amend; and it is FED. R. CIV. P. 6(a)(1)(C).

ORDERED, that the Clerk of the Court serve a copy of this All Citations

Report-Recommendation and Order upon the parties to this

action. Slip Copy, 2022 WL 17517312

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

2023 WL 3170384 2007). After the appropriate review, “the court may accept,

Only the Westlaw citation is currently available. reject, or modify, in whole or in part, the findings or

United States District Court, N.D. New York. recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(b)(1).

Manetirony CLERVRAIN, Plaintiff,

v. “[I]n a pro se case, the court must view the submissions

Jonathan ROBBINS, Jean-Max Bellerive, by a more lenient standard than that accorded to ‘formal

Josue Pierre-Louis, Garry Conille, Jean-Claude pleadings drafted by lawyers.’ ” Govan v. Campbell, 289

F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.

Theogene, Barthelemy Anteno, Kwasi Amoako-

Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).

Attah, and Victor (Ito) Bisono Haza, Defendants.

The Second Circuit has held that the court is obligated to

1:22-CV-1248 (MAD/DJS) “ ‘make reasonable allowances to protect pro se litigants’ ”

| from inadvertently forfeiting legal rights merely because they

Signed May 1, 2023 lack a legal education. Govan, 289 F. Supp. 2d at 295 (quoting

Taguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

Attorneys and Law Firms

Having reviewed the December 8, 2022 Report-

MANETIRONY CLERVRAIN, 4326 South Scatterfield Recommendation and Order, Plaintiff's complaint and the

Road, Suite 153, Anderson, Indiana 46013, Plaintiff, Pro Se. applicable law, the Court finds that Magistrate Judge Stewart

correctly determined that the complaint should be dismissed.

The complaint is largely incomprehensible and suffers from

ORDER several deficiencies. Rule 8(a) of the Federal Rules of Civil

Procedure provides that a pleading must contain “a short

Mae A. D'Agostino, United States District Judge: and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff's complaint

*1 On November 22, 2022, pro se Plaintiff Manetirony

is neither short nor plain. See Dkt. No. 1. As currently

Clervrain (“Plaintiff”) filed a complaint against Defendants

drafted, and even with the leniency given to a pro se litigant's

consisting of 70 pages of forms and documents, see Dkt. No.

pleadings, Plaintiff failed to meet pleading standards such

1, “recit[ing] a wide variety of federal statutes and case law,”

that the Court is unable to meaningfully analyze whether

Dkt. No. 7 at 5, and around two hundred pages of attachments.

Plaintiff can allege any colorable claim against Defendants.

See Dkt. Nos. 1-1, 1-5, 1-6. On the same day, Plaintiff moved

See Canning v. Hofmann, No. 1:15-CV-0493, 2015 WL

for leave to proceed in forma pauperis (“IFP”), see Dkt. No.

6690170, *5 (N.D.N.Y. Nov. 2, 2015) (“[H]aving found

2, and to obtain an ECF login and password. See Dkt. No. 3.

that none of the allegations in Plaintiff's meandering and

indecipherable Complaint raise a cognizable cause of action,

On December 8, 2022, Magistrate Judge Daniel J. Stewart

the Court concludes that the Complaint fails to state a claim

granted Plaintiff's motion to proceed IFP. See Dkt.

upon which relief may be granted and is subject to dismissal”)

No. 6. Additionally, Magistrate Judge Stewart issued a

(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Report-Recommendation and Order recommending that the

complaint be dismissed with leave to amend. See Dkt.

*2 Finally, the Court agrees with Magistrate Judge Stewart

No. 7. Plaintiff has not filed an objection to the Report-

that Plaintiff should be granted an opportunity to amend

Recommendation and Order.

out of deference to Plaintiff's pro se status. See Nielsen

v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“ ‘Generally,

When a party declines to file objections to a magistrate judge's

leave to amend should be freely given, and a pro se

report-recommendation or files “[g]eneral or conclusory

litigant in particular should be afforded every reasonable

objections or objections which merely recite the same

opportunity to demonstrate that he has a valid claim’ ”)

arguments [presented] to the magistrate judge,” the district

(quotation omitted). Should Plaintiff choose to amend the

court reviews those recommendations for clear error. O'Diah

complaint, the Court urges Plaintiff to review Magistrate

v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y.

and Order thoroughly. See Dkt. No. 7 at 4-6. within thirty (30) days of the date of this Order, the Clerk of

the Court shall enter judgment in Defendants’ favor and close

this case without further order from this Court; and the Court

Accordingly, the Court hereby

further

ORDERS that the Report-Recommendation and Order (Dkt.

No. 7) is ADOPTED in its entirety; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of

this Order on the parties in accordance with the Local Rules.

ORDERS that Plaintiff's complaint (Dkt. No. 1) is

DISMISSED with leave to amend; and the Court further

IT IS SO ORDERED.

ORDERS that Plaintiff shall file his amended complaint All Citations

within thirty (30) days of the date of this Order; and the Court

further Slip Copy, 2023 WL 3170384

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.