Opinion
3:23-CV-1597 (AMN/ML)
01-17-2024
DAVID C. LETTIERI, Plaintiff, v. JENELLE BRIGUEAL, Defendant.
APPEARANCES: OF COUNSEL: DAVID C. LETTIERI Plaintiff, Pro Se Niagara County Jail
APPEARANCES: OF COUNSEL:
DAVID C. LETTIERI
Plaintiff, Pro Se
Niagara County Jail
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
I. BACKGROUND
A. Procedural History
Plaintiff David C. Lettieri ("Plaintiff") commenced this civil rights action pro se on December 18, 2023, on a form complaint alleging that his rights were violated by Defendant Jenelle Brigueal (“Defendant”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
On December 19, 2023, the undersigned denied Plaintiff's motion for leave to proceed IFP because his submission was incomplete. (Dkt. No. 4.) The undersigned's order directed that “should Plaintiff wish to proceed with this action, he must either (i) pay the $405.00 filing fee, or (ii) submit a completed, signed, and certified inmate IFP application in accordance with this Decision and Order within thirty (30) days from the date of the filing of this Decision and Order.” (Dkt. No. 4 at 3.)
On January 11, 2023, Plaintiff filed an amended motion for leave to proceed IFP. (Dkt. No. 5.) In addition, Plaintiff filed a Letter Request/Motion seeking a restraining order, and two letters to the Court. (Dkt. Nos. 6, 7, 8.)
B. Complaint
Construed as liberally as possible, Plaintiff's Complaint appears to allege that his civil rights were violated by Defendant. (See generally Dkt. No 1.) The Complaint is far from clear but appears to allege that sometime in May 2023, Defendant, who is employed by the Federal Bureau of Investigations, “tampered with a witness that was on” Plaintiff's witness list. (Dkt. No. 1 at 5.) Based on these factual allegations, Plaintiff appears to assert the following two claims: (1) a claim that Plaintiff's “Sixth Amendment confrontation” right was violated; and (2) a claim that Plaintiff's Fifth Amendment due process right was violated. (Id. at 4.) As relief, Plaintiff seeks $1,000,000 in damages. (Id. at 5.) Plaintiff seeks leave to proceed IFP. (Dkt. No. 5.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
II. PLAINTIFF'S AMENDED APPLICATION TO PROCEED IFP
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to grant IFP status if it determines that the plaintiff is unable to pay the required fee. 28 U.S.C. § 1915(a)(1). Pursuant to 28 U.S.C. § 1915, where a plaintiff seeks leave to proceed IFP, the court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying the required filing fee. 28 U.S.C. § 1915(a)(1).
The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); see also Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
The decision of whether to grant an application to proceed IFP rests within the sound discretion of the court. Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983). The Court must be satisfied “that the person is unable to pay such fees or give security therefor” prior to granting IFP status. 28 U.S.C. § 1915(a)(1). To make this threshold showing, a plaintiff must demonstrate “that paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiff destitute.” Fiebelkorn v. United States, 77 Fed.Cl. 59, 62 (Fed. Cl. 2007) (citing Adkins v. E.l. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)); see also Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (“Section 1915[a] does not require a litigant to demonstrate absolute destitution[.]”); accord, Lee v. McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). As the Second Circuit has noted, “no party must be made to choose between abandoning a potential meritorious claim or foregoing the necessities of life.” Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. at 339).
Here, Plaintiff's submission is incomplete. For example, in response to question number 4, Plaintiff states that he has cash, checking, or savings accounts but does not know the total amount. (Dkt. No. 5 at ¶ 4.) Moreover, Plaintiff states that he owns real estate, stocks, bonds, securities, other financial instruments, automobiles, or other assets. (Id. at ¶ 5.) The application directs Plaintiff to describe the property and state its value. (Id.) Plaintiff states “Land and house have not [sic] clue on the value.” (Id.)
In this instance, due to Plaintiff's incomplete IFP application, I am unable to conclude that he possesses insufficient funds to pay the $405.00 filing fee to commence an action without “foregoing the necessities of life.” Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. 339). Accordingly, I deny Plaintiff's amended motion to proceed in this case IFP. (Dkt. No. 5.) To the extent that Plaintiff may wish to renew his request to proceed IFP, and given the Court's unanswered questions about his financial situation, any request to proceed without the prepayment of fees must include a fully completed prisoner in forma pauperis application.
To the extent that Plaintiff has been granted IFP in other actions that does not automatically qualify him for IFP status in this action. (Dkt. No. 7.) Moreover, Plaintiff is required to provide complete information regarding his finances because he is seeking IFP status. To the extent that Plaintiff would prefer to not provide the financial information, he is permitted to pay the $405 filing fee and forgo the IFP application. In addition, Plaintiff's choice to seek IFP status does not grant him access to the same financial information from Defendant. (Dkt. No. 8.)
The Court also notes that Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It appears from that review that Plaintiff accumulated three strikes for purposes of 28 U.S.C. § 1915(g) before the date this action was commenced. Lettieri v. Broome Cnty. Humane Society, 20-CV-7777, 23-CV-7830, 2023 WL 8003478, at *1 (E.D.N.Y. Nov. 17, 2023) (noting that Plaintiff accumulated his third strike on September 21, 2023). Moreover, the Complaint does not plausibly suggest that Plaintiff was in imminent danger of serious physical injury when he signed the Complaint. 28 U.S.C. § 1915(g).
III. RELEVANT LEGAL STANDARDS GOVERNING INITIAL REVIEW OF A COMPLAINT
Ordinarily, the finding that Plaintiff does not qualify for IFP status would end the Court's discussion, and Plaintiff, in light of his pro se status, would likely be afforded an opportunity to either prepay the full filing fee, or submit a new, completed, and certified application for IFP. Because, however, as is discussed more completely below, I find that Plaintiff's Complaint fails to state a claim upon which relief may be granted, 28 U.S.C. § 1915 requires that the court dismiss the action “[notwithstanding any filing fee, or any portion thereof, that may have been paid[.]” 28 U.S.C. § 1915(e).
Section 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 . . . 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). In deciding whether a complaint states a colorable claim, a court must extend a certain measure of deference in favor of pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties had an opportunity to address the sufficiency of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
When reviewing a complaint under section 1915(e), the court is guided by applicable requirements of the Federal Rules of Civil Procedure. More specifically, Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that all causes of action be dismissed.
“It is well-settled that a [42 U.S.C.] § 1983 claim does not lie against the federal government, its agencies, or employees.” Feldman v. Lyons, 852 F.Supp.2d 274, 278 (N.D.N.Y. 2012) (collecting cases). In 1971, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 397 (1971), “the Supreme Court recognized an implied private cause of action for damages against federal officers who violate a citizen's constitutional rights.” Feldman, 852 F.Supp.2d at 278. “Bivens actions, although not precisely parallel, are the federal analog to § 1983 actions against state actors.” Id. (citing Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987)).
In Bivens, the Court determined that, “even absent statutory authorization, it would enforce a damages remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search and seizures.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017) (citing Bivens, 403 U.S. at 397). The Court further noted, however, that since its decision in Bivens in 1971, it had only recognized an implied cause of action under Bivens in two cases involving other constitutional violations. Id. at 1854-55 (citing Davis v. Passman, 99 S.Ct. 2264 (1979) (holding that the Fifth Amendment Due Process Clause provided an administrative assistant who sued a Congressman for firing her because she was a woman, a damages remedy for gender discrimination); Carlson v. Green, 446 U.S. 14 (1980) (holding that the Eighth Amendment Cruel and Unusual Punishments Clause provided a prisoner's estate a damages remedy for failure to provide the deceased with adequate medical treatment)).
The Supreme Court recently reiterated that “a cause of action under Bivens is ‘a disfavored judicial activity.'” Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022) (quoting Ziglar, 582 U.S. at 135 (2017)). Generally, when analyzing whether a cause of action existed under Bivens, courts have used “a two-step process.” McGowan v. United States, 825 F.3d 118, 123 (2d Cir. 2016) (per curiam). “First, the court must determine whether the underlying claims extend Bivens into a ‘new context.” McGowan, 825 F.3d at 123 (quoting Turkmen v. Hasty, 789 F.3d 218, 234 (2d Cir. 2015), reversed in part on other grounds by Ziglar, 582 U.S. at 138-56). “If the case is different in a meaningful way from previous Bivens cases decided by th[e Supreme] Court, then the context is new.” Ziglar, 582 U.S. at 139.
Here, assuming arguendo that Plaintiff had an implied cause of action under Bivens for his witness tampering claim, he fails to state a claim upon which relief may be granted. Plaintiff alleges solely that Defendant “tampered” with a witness on his witness list. (Dkt. No. 1 at 5.) This conclusory allegation fails to assert any action taken by Defendant that constituted the alleged tampering. See Terpening v. McGinty, 21-CV-1215, 2022 WL 17418268, at *13 n.16 (N.D.N.Y. Oct. 5, 2022) (Hummel, M.J.) (finding that the plaintiff's allegation that she has been unable to obtain transcripts from the relevant custody proceedings and inclusion of a “one page letter from a court clerk at the Town of Rochester Justice Center” indicating that there were no records for a specific case number, failed to “plead any facts that suggest that defendant has taken any actions to tamper with evidence, or hide or alter any records” and thus, failed to allege facts plausibly suggesting a . . . claim for relief), report-recommendation adopted by 2022 WL 17415121 (N.D.N.Y. Dec. 5, 2022) (Suddaby, J.); London v. Cnty. of Ulster, 14-CV-1095, 2015 WL 1579147, at *9 (N.D.N.Y. Apr. 9, 2015) (Treece, M.J.) (“While [the p]laintiff has scripted pages upon pages of accusations against these two [d]efendants, including claims of bias, coercion, and witness/evidence tampering, these accusations are a cavalcade of conclusions and not facts upon which this Court may find that a plausible claim has been pled here. Thus, we recommend dismissing these [d]efendants from this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).”).
As a result, I recommend that Plaintiff's Complaint be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
To the extent that Plaintiff's claim is construed as a conspiracy claim pursuant to 42 U.S.C. § 1985 or Bivens, I recommend that it be dismissed for failure to state a claim upon which relief may be granted. To state a claim of conspiracy under Bivens, a plaintiff must show “(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Powell v. United States, 19-CV-11351, 2020 WL 5126392, at *9 (S.D.N.Y. Aug. 31, 2020) (quoting Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)). To state a claim of conspiracy under Section 1985(3), a plaintiff must allege facts suggesting the existence of: (1) a conspiracy; (2) for the purpose of depriving the plaintiff of the equal protection of the laws, or the equal privileges or immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of his right or privilege as a citizen of the United States. Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). “[T]he [Section 1985(3)] conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.” Thomas, 165 F.3d at 146 (internal quotation marks and citation omitted). Vague and unsupported assertions of a claim of conspiracy, either under Section 1985 or Bivens will not suffice to state a claim upon which relief can be granted. See, e.g., Stoner v. Young Concert Artists, Inc., 626 Fed.Appx. 293, 296 (2d Cir. 2015) (summary order); Wang v. Miller, 356 Fed.Appx. 516, 517 (2d Cir. 2009) (summary order); Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990). Plaintiff's sole conclusory allegation that Defendant engaged in witness tampering fails to plausibly suggest any conspiracy with other actors.
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Although this Court has serious doubts, it is not clear whether a better pleading would permit Plaintiff to assert a cognizable cause of action against Defendant. Out of an abundance of caution and in deference to Plaintiff's pro se status, the undersigned recommends the Complaint be dismissed with leave to amend to cure the defects as stated above.
If Plaintiff chooses to avail himself of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on which he relies to support any legal claims asserted. Fed.R.Civ.P. 8(a). In addition, the amended complaint must include allegations reflecting how the individual(s) named as Defendant(s) are involved in the allegedly unlawful activity. Moreover, any amended pleading should address the issues identified in note 4. Finally, Plaintiff is informed that any amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted)).
VI. PLAINTIFF'S MOTION FOR A RESTRAINING ORDER
In the present matter, the undersigned has recommended dismissal of the action. As such, I recommend that Plaintiff's motion for a restraining order against Defendant be denied. (Dkt. No. 6.)
ACCORDINGLY, it is
ORDERED that Plaintiff's amended IFP application (Dkt. No. 5) is DENIED without prejudice and with leave to renew; and it is further
ORDERED that should Plaintiff wish to proceed with this action, he must either (i) pay the $405.00 filing fee, or (ii) submit a completed, signed, and certified inmate IFP application in accordance with this Order and Report-Recommendation within thirty (30) days from the date of the filing of this Order and Report-Recommendation. Plaintiff is advised that, if he does not fully comply with this Order and Report-Recommendation within thirty days, the undersigned will issue a report and recommendation to the assigned district judge that the action be dismissed; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO AMEND Plaintiff's Complaint (Dkt. No. 1) pursuant to 28 U.S.C. 1915(e)(2)(B) for failure to state a claim upon which relief may be granted; and it is further respectfully
RECOMMENDED that the Court DENY Plaintiff's motion for a restraining order (Dkt. No. 6); and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules. The Clerk shall also send Plaintiff a blank inmate IFP application.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).