Colon v. Davis

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

______________________________________________

ALICIA COLON,

Plaintiff,

5:23-cv-00913

v. (BKS/TWD)

ANTHONY DAVIS, et al.,

Defendants.

______________________________________________

APPEARANCES:

ALICIA COLON

Plaintiff, pro se

210 Lincoln Ave.

Apt. 2

Syracuse, NY 13204

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

Currently before the Court is Plaintiff’s amended complaint (Dkt. No. 6), a motion to

appoint counsel (Dkt. No. 9), and a “supplement” to the amended complaint (Dkt. No. 10). For

the reasons discussed below, the Court recommends Plaintiff’s amended complaint be dismissed

in its entirety with leave to amend. In addition, Plaintiff’s motion to appoint counsel is denied

without prejudice.

I. BACKGROUND

On July 28, 2023, Plaintiff commenced this action by filing a pro se complaint against

the Syracuse City School District (“SCSD” or the “District”); Anthony Davis, SCSD

Superintendent; Monique Wright-Williams, Chief of Staff and Head of Family Engagement

Department; and Nina Vergara, Family Engagement Facilitator of SCSD Westside Quadrant

(collectively “Defendants”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and

sought leave to proceed in forma pauperis. (Dkt. No. 2.)

On August 30, 2023, the undersigned issued an Order and Report-Recommendation after

an initial review of Plaintiff’s complaint pursuant to 28 U.S.C. § 1915. (Dkt. No. 4). In that

Order, the Court granted Plaintiff’s motion to proceed in forma pauperis, but recommended

dismissal of the complaint with leave to amend. Id. Plaintiff’s objections to the Report-

Recommendation were due by September 13, 2013. Id.

Thereafter, on October 16, 2023, Plaintiff filed an objection to the Report-

Recommendation, along with an amended complaint, which was filed on November 16, 2023.

(Dkt. Nos. 5, 6.) As a result, on November 20, 2023, Chief United States District Judge Brenda

K. Sannes denied the Report-Recommendation as moot and referred the amended complaint,

which Plaintiff was entitled to file as a matter of course under Federal Rule of Civil Procedure

15(a)(1), back to this Court for initial review. (Dkt. No. 7.)

On January 23, 2024, Plaintiff filed a motion to appoint counsel, along with a

“supplement” to the amended complaint. (Dkt. Nos. 9, 10.1)

II. INITIAL REVIEW OF THE AMENDED COMPLAINT

A. Standard of Review

The Court shall dismiss a complaint in a civil action if the Court determines it is

frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-

1 The “supplement” is not a proper pleading. (Dkt. No. 10.) In light of Plaintiff’s pro se status,

the Court will consider the three-page “supplement” for purposes of initial review of the

amended complaint. Plaintiff is advised that she may not attempt to amend her pleadings in a

piecemeal manner. See L.R. 15.1.

(iii); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court

must also dismiss a complaint, or portion thereof, when the Court lacks subject matter

jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these

grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66,

72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation

marks and citation omitted).

A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550

U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding “a finding of

factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the

wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when either: (1) the

factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless

legal theory.”).

To survive dismissal for failure to state a claim, a complaint must contain a short and

plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2).

This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at

570. “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). The statement of the claim must do more than

present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant

fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555

(internal quotation marks and citations omitted); see also Fed. R. Civ. P. 8(a)(2).

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)

(citations 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.

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

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

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

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

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

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

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

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

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

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

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

129, 131 (2d Cir. 1993).

B. Summary of Amended Complaint

Plaintiff’s thirty-page amended complaint presents a lengthy narrative of facts occurring

over a period of years in a long-winded, tangential manner. (See generally Dkt. Nos. 6, 10.)

Although it is typed, legible, and somewhat numbered, her claims, if any, are cumbersome and

difficult to understand. Many sentences are incomplete. She often includes multiple statements,

within a single paragraph, spanning several pages.

By way of example, Plaintiff references the suicide of a SCSD Vice Principal in 2009,

and alleges the “psychological abuse and aversive conditioning within Syracuse City School is

so common it has come to be considered public knowledge” and there has been no “measurable

improvement in the workplace culture since the suicide of the Vice Principal in 2009. (Dkt. No.

6 at 1.) She alleges Nina Vergara “knowingly obstructed the plaintiff in September 2022,

therefore the plaintiff’s daughter and every student in the Syracuse City School’s Westside

quadrant remain at risk of inadequate supervision.” Id. at 3-4.

Plaintiff states she joined the Parent Advisory Council (“PAC”) in 2021. Id. at 4. While

not entirely clear, she appears to take issue with the manner in which PAC meetings are

calendared, recorded, and run. Id. at 4-11. She also raises concerns about children using

“Virtual Reality Equipment” while at school. Id. at 5-6. She wants more information about the

“PUMP” Bus. Id. at 5-7. She alleges the District is “knowingly obstructing the plaintiff and the

SCSD PAC from annually reviewing the Syracuse City School District’s Title 1 Community and

Family Involvement Plan,” which “has not been updated since before the Syracuse City Schools

desegrated in 1965 . . . .” Id. at 9, 17. She complains about the “family room” at Delaware

Primary and the lack of internet. Id. at 13, 14.

She states Superintendent Davis, Monique Wright-Williams, Nina Vergara, and the

Syracuse City School have “committed years of psychological abuse against every Syracuse City

School Family and puts every family at risk of future phycological [sic] harm without relief.” Id.

at 19. Plaintiff takes issue with the change in the start time for school, and claims “this act puts

various students at risk.” Id. at 11-12, 19, 26. She alleges Superintendent Davis “lied to the

entire community” when discussing the change of start time. Id. at 19.

She asserts the District failed to provide the PAC “with those things which they are

entitled to on various occasions during the 2022-23 school year and that these repetitive

obstructions amounted to neglect.” Id. at 11. She claims Monique Wright-Williams “knowingly

and purposely distributed misinformation, obstructed the plaintiff, participates in wanton

deliberate misuse of restrain and all families and staff are at risk of inadequate supervision as a

result.” Id. at 14. Plaintiff states Delaware Primary School has remained without a full-time

program aide for at least three years. Id. at 16.

As part of the “supplement,” Plaintiff submits a copy of a letter from the District, dated

January 17, 2024, notifying Plaintiff that because of her actions at the Syracuse City School

District’s Central Office on January 16, 2024, she is excluded from all Syracuse City School

District property, and must obtain permission from the school principal before she visits. (Dkt.

No. 10 at 3.)

Plaintiff requests that the Court grant the following relief:

• “protection” for Plaintiff’s two children ages 3 and 9 “which

prevents” the Syracuse City School from “intruding on their

physical bodies without being invited;”

• requiring the District “to provide scientific and peer reviewed

evidence which proves Virtual Reality helps children learn; which

ensures that if Syracuse City School District wants to use the

equipment donated by Micron that they provide appropriate cyber

security protections;”

• “assistance in obtaining all records related to the PUMP bus;”

• preventing “one single person in the role of Syracuse City School

Chief Engagement Officer from holding any other role;”

• prohibiting “Monique Wright-Williams from participating in the

administration of the SCSD PAC and which prevents SCSD PAC

meeting minutes from being recorded by a SCSD employee;”

• ensuring every SCSD family has “access to the basic amenities of

a 21st century school site” including a “well developed website,

adult internet access and printing capabilities from the family

room” at every school;

• separating the “Family Involvement handbook” and the “Paper

Calendar into two separate documents;”

• providing Delaware Primary School “with a new or different

Family Engagement Facilitator and assigning them a program aide

to assist the approx. 300 families with the transition to

Montessori;”

• ordering the District to “rebuild” their Title 1 Community and

Family Involvement Plan;

• protecting “program aides” and ensuring everyone within the

Family Engagement department receives “effective training;”

• holding the District “accountable” and requiring “them to confess

to neglecting the program’s Title 1 Community and Family

Involvement Plan for the past 22 years, confess to the mistreatment

of the SCSD PAC and publicly apologize for trying to place all the

blame at the feet of parents and families;”

• recognizing “that a group equivalent to the SCSD PAC exists

inside every public-school program across the United States of

America regardless of what the education program decides to call

such a group;”

• prohibiting the District “from changing the name of the SCSD

PAC for the next century,” returning the monthly PAC meetings to

all versions of the District Calendar; and assisting the PAC “in

creating by-laws to explain how the group works and why it is

essential;”

• making “use of Parliamentary Procedures and Robert’s rules of

order a requirement during” SCSD PAC meetings, and which

“prohibits” SCSD employees from recording SCSD PAC meeting

minutes;

• assisting “all staff and families from being subjected to aversive

conditions” by the Syracuse City School District’s Superintendent

Office and requiring “written documentation any time the

Superintendent or a member of his team uses executive discretion

to deny an individual volunteer work;”

• ensuring the Board of Education “is using proper parliamentary

procedures during general business meetings, audit committees,

and work sessions in such a way the courts see it;”

• any other relief deemed appropriate by the court.

Id. at 21-25.

C. Analysis

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

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

Having reviewed Plaintiff’s filings with this principle in mind, the Court recommends dismissal

of the amended complaint in its entirety.

Plaintiff’s amended complaint suffers from numerous defects. (Dkt. Nos. 6, 10.) First,

the amended complaint is not signed, and thus violates Federal Rule of Civil Procedure 11(a) and

Local Rule 10.1(c)(2). Second, the amended complaint does not contain a caption or list the

names of all the parties as required by Federal Rule of Civil Procedure 10(a).2

Third, the amended complaint fails to meet the standards of Federal Rules of Civil

Procedure 8 and 10. Rule 8 requires a “short and plain statement” of a claim, showing that “the

pleader is entitled to relief.” Whitfield v. Johnson, 763 F. App’x 106, 107 (2d Cir. 2019)

(quoting Fed. R. Civ. P. 8(a)). Each statement must be “simple, concise, and direct,” and give

“fair notice of the claims asserted.” Whitfield, 763 F. App’x at 107 (quoting Simmons v.

2 The header of the amended complaint does indicates the civil docket number and “Colon V

Davis etc al”.

Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). “A complaint may be dismissed under Rule 8 if it is ‘so

confused, ambiguous, or otherwise unintelligible that its true substance, if any, is well

disguised.’” Id.

Moreover, Rule 10 provides that “[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. 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).

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).

As it currently stands, Plaintiff’s amended complaint wholly fails to provide fair notice of

the claims she attempts to assert. (Dkt. Nos. 6, 10.) Given its lack of clarity, the Court

recommends dismissal of the amended complaint because it is not acceptable under Rules 8 and

10 of the Federal Rules of Civil Procedure.

Fourth, and in the alternative, the Court recommends Plaintiff’s amended complaint be

dismissed because she fails to state a claim upon which relief may be granted. Even giving the

most liberal construction to Plaintiff’s amended complaint, the Court is unable to discern a

cognizable cause of action and it is thus difficult to analyze Plaintiff’s claims, if any. 28 U.S.C.

§ 1915(e)(2)(B).

At the top of every page, Plaintiff indicates “Cause Civil Rights Act.” But Plaintiff does

not explain, in any discernable way, how a defendant violated any of her civil rights.3 Thus, the

allegations contained within Plaintiff’s amended complaint “fail to provide adequate notice

regarding the legal claims Plaintiff seeks to assert against Defendants or the facts underlying

those claims.” Hamza v. Yandik, No. 1:19-CV-447(LEK/DJS), 2019 WL 10255336, at *2

(N.D.N.Y. June 27, 2019); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.

1991).

Setting aside the foregoing pleading defects, this Court does not have jurisdiction to grant

Plaintiff any of the requested relief. (Dkt. No. 6 at 21-25.)

For each of these reasons, the Court recommends dismissing Plaintiff’s amended

complaint. However, in light of her pro se status, prior to outright dismissal of this action, the

Court recommends that Plaintiff be given a final opportunity to comply with the basic pleading

requirements set forth above.4

Plaintiff is advised that, should the District Court permit Plaintiff to file a second

amended complaint, and if she chooses to avail herself of an opportunity to amend, such

amended pleading must cure the defects set forth above.5 To that end, the pleading must be

signed, list the names of the parties, and set forth a short and plain statement of the facts on

3 Because Plaintiff is proceeding pro se, she may not bring an action on behalf of a minor (or

any other person). See Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010) (citation omitted).

4 Had Plaintiff waited for Chief Judge Sannes to issue an Order on the Report-Recommendation,

she would have learned of this Court’s identification of the pleading defects in her original

complaint, many of which are repeated in the amended complaint.

5 Plaintiff should not submit a second amended complaint until Chief Judge Sannes issues

a Decision and Order on this Report-Recommendation. Any pleading filed before Chief

Judge Sannes’ decision with respect to this Court’s recommendations will be stricken as

premature and will not be considered by the Court. As noted below, however, Plaintiff

may file written objections to this Court’s recommendations.

which she relies to support any legal claims asserted. Fed. R. Civ. P. 8(a). Plaintiff must also

clearly state the nature of the suit and the basis for this Court’s jurisdiction. The body of the

pleading must contain sequentially numbered paragraphs containing only one act of alleged

misconduct per paragraph. Fed. R. Civ. 10. No portion of any prior complaint shall be

incorporated into the second amended complaint and piecemeal pleadings are not permitted.

III. PLAINTIFF’S MOTION TO APPOINT COUNSEL

Plaintiff has also submitted a motion to appoint counsel. (Dkt. No. 9.) As an initial

matter, “[a] party has no constitutionally guaranteed right to the assistance of counsel in a civil

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

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

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

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

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

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

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

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

should then consider:

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

conflicting evidence implicating the need for cross-examination

will be the major proof presented to the fact finder, the indigent’s

ability to present the case, the complexity of the legal issues and

any special reason in th[e] case why appointment of counsel would

be more likely to lead to a just determination.

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

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

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

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

In the present matter, the Court has recommended dismissal of the amended complaint.

As such, the Court cannot find that Plaintiff’s claims, if any, are likely to be of substance.

Plaintiff’s motion to appoint counsel is denied without prejudice. (Dkt. No. 9.)

IV. CONCLUSION

For the reasons stated herein, it is hereby

RECOMMENDED that Plaintiff’s amended complaint (Dkt. No. 6) be DISMISSED

WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further

ORDERED that Plaintiff’s motion to appoint counsel (Dkt. No. 9) is DENIED

WITHOUT PREJUDICE; 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.

Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written

objections to the foregoing report.6 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

6 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). 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. Fed. R. Civ. 6(a)(1)(C).

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: February 1, 2024

Syracuse, New York

a Wiley Dancks :

United States Magistrate Judge

13

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. Not Reported in Fed. Supp., 2022 WL 17517312

End of Document © 2024 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 © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2019 WL 10255336

may properly maintain his complaint before permitting him to

proceed further with his action. Generally, a court should not

Fa KeyCite Yellow Flag - Negative Treatment dismiss a complaint if the plaintiff has stated “enough facts

Meer ooo Adopted as Modified by Hamza y. Yandik, 4 state a claim to relief that is plausible on its face.” Bell

, Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Rule 8 of

2019 WL 10255336 the Federal Rules of Civil Procedure provides that a pleading

Only the Westlaw citation is currently available. which sets forth a claim for relief shall contain, inter alia,

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

Amir M. HAMZA, Plaintiff, purpose of this Rule “is to give fair notice of the claim being

Vv. asserted so as to permit the adverse party the opportunity to

Eileen YANDIK, Stephen Yandik, file a responsive answer [and] prepare an adequate defense.”

and Green Acres Farm, Defendants. Hudson y. Artuz, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30,

1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D.

Civ. No. 1:19-CV-447 (LEK/DJS) 15, 16 (N.D.N-Y. 1995) (other citations omitted)). Rule 8

| also provides that a pleading must contain “a short and plain

Signed 06/27/2019 statement of the grounds for the court's jurisdiction.” FED. R.

CIV. P. 8(a)(1).

Attorneys and Law Firms

, Rule 10 of the Federal Rules of Civil Procedure provides, in

AMIR M. HAMZA, Plaintiff Pro Se, P.O. Box 281, Philmont, part:

New York 12565.

(b) Paragraphs; Separate Statements.

REPORT-RECOMMENDATION and ORDER . .

A party must state its claims or

DANIEL J. STEWART, United States Magistrate Judge defenses in numbered paragraphs,

each limited as far as practicable to

*1 Plaintiff Amir Hamza originally filed his Complaint a single set of circumstances. A later

in this action on April 15, 2019. Dkt. No. 1. Pursuant to pleading may refer by number to

28 U.S.C. § 1915(e), this Court reviewed the sufficiency a paragraph in an earlier pleading.

of the Complaint and issued a Report-Recommendation If doing so would promote clarity,

recommending that the Complaint be dismissed with leave each claim founded on a separate

to amend. Dkt. No. 6. Plaintiff did not file objections to transaction or occurrence — and each

the Report-Recommendation, but instead filed an Amended defense other than a denial — must be

Complaint. Dkt. No. 9, Am. Compl. The District Court has stated in a separate count or defense.

referred the Amended Complaint to the undersigned for

review under section 1915(e). Dkt. No. 10. For the reasons set

forth below, the Court again recommends that the Amended ~— FED. R. CIV. P. 10(b). The purpose of Rule 10 is to “provide

Complaint be dismissed, but that Plaintiff be afforded one an easy mode of identification for referring to a particular

final opportunity to further amend his Complaint. paragraph in a prior pleading[.]” Sandler v. Capanna, 1992

WL 392597, at *3 (E.D. Pa. Dec. 17, 1992) (citing 5 C. Wright

Section 1915(e) of Title 28 of the United States Code directs & A. Miller, Federal Practice and Procedure, § 1323 at 735

that, when a plaintiff seeks to proceed in forma pauperis, (1990)). A complaint that fails to comply with these Rules

“the court shall dismiss the case at any time if the court presents too heavy a burden for the defendant in shaping a

determines that ... the action or appeal (i) is frivolous or comprehensive defense, provides no meaningful basis for a

malicious; (1i) fails to state a claim on which relief may be _court to assess the sufficiency of a plaintiff's claims, and may

granted; or (iii) seeks monetary relief against a defendant —_ properly be dismissed by the court. Gonzales v. Wing, 167

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). ER.D. 352, 355 (N.D.N.Y. 1996).

Thus, it is a court's responsibility to determine that a plaintiff

in the light most favorable to the plaintiff, “the tenet that pleading requirements.

a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions.” Id. 1 References to page numbers are to the page

“Threadbare recitals of the elements of a cause of action, numbers assigned by the Court's CM/ECF system.

supported by mere conclusory statements, do not suffice.” Id.

(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here The Amended Complaint is significantly more streamlined

the well-pleaded facts do not permit the court to infer more than the original pleading which totaled over 138 pages.

than the mere possibility of misconduct, the complaint has It omits many of the very intimate details of Plaintiff's

alleged – but it has not ‘show[n]’–‘that the pleader is entitled life and personal relationships that were included in the

to relief.’ ” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). A original Complaint. See generally Am. Compl. It continues,

pleading that only “tenders naked assertions devoid of further however, to be deficient in terms of providing specific and

factual enhancement” will not suffice. Id. at 678 (further adequate notice of the claims Plaintiff attempts to assert

citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, for the in this action. It repeats the sweeping allegations of the

proposition that Federal Rule of Civil Procedure 8 “demands original Complaint against the named Defendants including,

more than an unadorned, the-defendant-unlawfully-harmed- but not limited to the failure to maintain proper financial

me accusation”). Allegations that “are so vague as to fail and tax records, failure to comply with state workers’

to give the defendants adequate notice of the claims against compensation laws, coercion, threats, and harassment of

them” are subject to dismissal. Sheehy v. Brown, 335 Fed. employees, discrimination based on race, religion, and sexual

Appx. 102, 104 (2d Cir. 2009). orientation, unlawful business recordkeeping, unlawful

campaign contributions, and violations of New York State

At the outset the Court notes that the Amended Complaint firearms laws. See generally id. Many of these allegations,

contends that the Court has jurisdiction under the diversity however, do not relate directly to Plaintiff in any way. As

statute, 28 U.S.C. § 1332, and affirmatively alleges that such, the Amended Complaint fails to meet the requirements

he is a “resident of Dover, Delaware.” Am. Compl. at p. under Rule 8 for “a short and plain statement of the claim

1.1 Defendants are alleged to be residents of New York. showing that the pleader is entitled to relief.” Plaintiff does

not allege specific legal causes of action, tied to particular

Id. Plaintiff's other filings with the Court, however, list his

facts supporting those claims.

address as Philmont, New York. Dkt. Nos. 2, 3, & 8. The

proposed summonses provided by Plaintiff seek to have

*3 As currently set forth the allegations fail to provide

Defendants respond to the Complaint to Plaintiff at his New

adequate notice regarding the legal claims Plaintiff seeks to

York address. Dkt. Nos. 2-1, 2-2, & 2-3. In addition, just

assert against Defendants or the facts underlying those claims.

a few weeks prior to filing this action, Plaintiff filed a

By way of example, it now appears that Plaintiff seeks to

federal civil action in the District of New Jersey where he

assert claims under the Racketeer Influenced and Corrupt

affirmatively alleged his address to be the same Philmont,

Organizations Act (“RICO”). Am. Compl. at p. 12.

New York address listed in filings made in this Court.

Hamza v. United Continental Holdings, LLC, et al., 19- A plaintiff asserting a RICO violation must adequately

CV-8971 (D. N.J.), Dkt. No. 1. In light of these facts, “the plead “(1) the defendant's violation of [18 U.S.C.] § 1962,

allegations in the complaint with respect to the plaintiff[’s] (2) an injury to plaintiff's business or property, and (3) the

place[ ] of residence are insufficient to establish diversity causation of the injury by the defendant's violation.” To

jurisdiction.” Mackason v. Diamond Fin. LLC, 347 F. Supp. adequately plead the causation element of a RICO claim,

2d 53, 55 (S.D.N.Y. 2004) (emphasis added). It is thus quite the plaintiff must allege that the defendant's conduct was

unclear to the Court that complete diversity necessary to the “legal, or proximate, cause of [his] injury, as well as the

confer jurisdiction under section 1332 exists in this case. See logical, or but for, cause.”

Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719,

725 (2d Cir. 2017) (jurisdiction under section 1332 requires Stancuna v. New Haven Legal Assistance Inc., 383 Fed. Appx.

“complete diversity.”). It may be, however, that a properly 23, 24 (2d Cir. 2010) (quoting Lerner v. Fleet Bank, N.A.,

pled complaint could establish jurisdiction under 28 U.S.C. 459 F.3d 273, 283 (2d Cir. 2006) (alterations in original)).

§ 1331, federal question jurisdiction. But, for the following The Amended Complaint contains a list of federal statutes

Plaintiff alleges that the Defendants have violated as a part of

Complaint, however, fails to specifically demonstrate as to amend to do so.

many of those statutes how the alleged actions were the legal

or proximate cause of any injury to Plaintiff. For example, *4 Should Plaintiff be directed by the District Judge to file

Plaintiff alleges that some or all of the Defendants failed a further amended complaint, I offer the following guidance.

to properly pay taxes and falsely advertised the origin of Any such amended complaint, which shall supersede and

products for sale. Id. No facts are alleged nor any explanation replace in its entirety the previous Complaints filed by

offered, however, as to how these actions, if true, harmed Plaintiff, must contain a caption that clearly identifies, by

Plaintiff. He does make more specific allegations as to other name, each individual/entity that Plaintiff is suing in the

alleged RICO predicate offenses, but the lack of clarity and present lawsuit and must bear the case number assigned

conclusory nature of the allegations fails to provide “fair to this action. Plaintiff must also clearly state the nature

notice” to Defendants about the nature of the claim being of the suit and the basis for this Court's jurisdiction. The

asserted against them. Hudson v. Artuz, 1998 WL 832708, at body of Plaintiff's second amended complaint must contain

*1. sequentially numbered paragraphs containing only one act

of misconduct per paragraph. Thus, if Plaintiff claims that

There are additional allegations set forth in the Amended his civil and/or constitutional rights were violated by more

Complaint that are unclear as to precisely what claims than one Defendant, or on more than one occasion, he should

Plaintiff seeks to pursue here. Plaintiff, for example, refers include a corresponding number of paragraphs in his amended

several times to official positions held by Defendants Eileen complaint for each such allegation, with each paragraph

and William Yandik, see, e.g., Am. Compl. at pp. 3 & 6, specifying (i) the alleged act of misconduct; (ii) the date on

which might provide a basis for claims under 42 U.S.C. § which such misconduct occurred; (iii) the names of each and

1983. Plaintiff, however, offers nothing more than conclusory every individual who participated in such misconduct; (iv)

allegations and does not identify specific constitutional rights where appropriate, the location where the alleged misconduct

that he alleges Defendants have infringed. Additionally, occurred; and, (v) the nexus between such misconduct and

Plaintiff appears to make a number of allegations that certain Plaintiff's civil and/or constitutional rights.

Defendants are engaged in criminal activity, see, e.g., Am.

Compl. at pp. 5 & 6, but does not demonstrate on what basis ACCORDINGLY, it is hereby

such allegations are actionable. See Ruston v. World Wrestling

Entm't, 2008 WL 824217, at *3 (D. Conn. Mar. 25, 2008) RECOMMENDED, that this action be sua sponte dismissed,

(citing cases) (raising questions as to whether a private party but that Plaintiff be granted leave to replead his Complaint;

has standing to raise such claims). and it is further

As a result, it is unclear precisely what legal right or rights ORDERED, that the Clerk of the Court serve a copy of this

of Plaintiff have been violated or how these Defendants, Report-Recommendation and Order upon the parties to this

in particular, may have violated those rights. This failure action.

warrants dismissal of the Complaint. Powell v. Marine

Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (Dismissal Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen

appropriate when Complaint “does not provide an adequate (14) days2 within which to file written objections to the

description of the particular acts by the defendant which led foregoing report. Such objections shall be filed with the Clerk

to this suit or an explanation of how such acts were illegal.”). of the Court. FAILURE TO OBJECT TO THIS REPORT

WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

Courts recognize that dismissal of a complaint filed by a pro APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89

se litigant “without granting leave to amend at least once (2d Cir. 1993) (citing Small v. Sec'y of Health and Human

‘when a liberal reading of the complaint gives any indication Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §

that a valid claim might be stated’ ” would be inappropriate. 636(b)(1); FED. R. CIV. P. 72 & 6(a).

Bruce v. Tompkins Cty. Dep't of Soc. Servs. ex rel. Kephart,

2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting 2

If you are proceeding pro se and are served with this

Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Here,

Report-Recommendation and Order by mail, three

Plaintiff may be able to cure the deficiencies in his pleading

the date the Report-Recommendation and Order or legal holiday. FED. R. CIV. P. 6(a)(1)(C).

was mailed to you to serve and file objections.

FED. R. CIV. P. 6(d). If the last day of that All Citations

prescribed period falls on a Saturday, Sunday, or

Not Reported in Fed. Supp., 2019 WL 10255336

legal holiday, then the deadline is extended until the

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.