Opinion
6:22-CV-0982 (GTS/ML)
09-08-2023
SHEILA ROBINSON, Plaintiff, v. MARK WILLIAMS, et al., Defendants.
APPEARANCES: OF COUNSEL: SHEILA ROBINSON Plaintiff, Pro Se
APPEARANCES: OF COUNSEL:
SHEILA ROBINSON
Plaintiff, Pro Se
REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent a pro se revised amended complaint in the above captioned action filed by Sheila Robinson (“Plaintiff”) to the Court for review. (Dkt. No. 12.) For the reasons discussed below, I recommend that Plaintiff's revised Amended Complaint be dismissed in its entirety without leave to amend. (Id.)
I. BACKGROUND
Plaintiff commenced this action on September 19, 2022, by the filing of a complaint together with a motion for leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) On December 22, 2022, Plaintiff filed a motion to appoint counsel. (Dkt. No. 5.) On January 12, 2023, the undersigned issued an Order and Report-Recommendation granting Plaintiff's motion to proceed IFP, denying without prejudice Plaintiff's motion for appointment of counsel, and recommending that Plaintiff's Complaint be dismissed in its entirety. (Dkt. No. 6.)
On April 14, 2023, Plaintiff filed objections to the undersigned's Order and Report-Recommendation dated January 12, 20223. (Dkt. No. 9.) In addition, on April 14, 2023, Plaintiff filed an amended complaint. (Dkt. No. 10.)
On April 18, 2023, United States District Judge Glenn T. Suddaby accepted and adopted the undersigned's Order and Report-Recommendation. (Dkt. No. 11.) More specifically, Judge Suddaby dismissed the following claims: (1) Plaintiff's claims against Utica Police Department, the City of Utica, and Judge Stanton; (2) Plaintiff's claims against the New York State Attorney General and unnamed New York State officials; and (3) Plaintiff's stalking, cyberstalking, and harassment claims against Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and Zuckerberg. (Id.) In addition, Judge Suddaby ordered that the following claims were dismissed without further order of the Court unless, within thirty days, Plaintiff filed an amended complaint that corrected the pleading defects identified: (1) Plaintiff's claims under 42 U.S.C. §§ 1983, 1985, and 1986 against Defendants Schumer, Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, Zuckerberg, Williams, Piersall, DeTraglia, Aiello, Baye, Phillips, Grullon, French, Rios, John Does, James, Brin, Page, Pichai, Beaver, Marino, Durham, Newstead, Hopskin, Schultz, Vomer, and Sanders; and (2) Plaintiff's defamation claims against Defendants Schultz, Vomer, and Sanders. (Id.) Judge Suddaby directed Plaintiff to either (1) notify the Court in writing that her proposed Amended Complaint (Dkt. No. 10) “is indeed the Amended Complaint on which she wishes to proceed,” or (2) file a revised Amended Complaint. (Id.)
On May 12, 2023, Plaintiff filed the revised Amended Complaint, which is currently pending before the Court for a review pursuant to 28 U.S.C. § 1915. (Dkt. No. 12.)
Plaintiff's revised Amended Complaint largely duplicates her Complaint. (Compare Dkt. No. 1 at 3-12, with Dkt. No. 12 at 5-14.) However, Plaintiff appears to assert several additional causes of action. (See Dkt. No. 12 at 14-26.) Notwithstanding the addition of numerous pages and causes of action, Plaintiff does not appear to include additional relevant factual allegations. (Compare Dkt. No. 1, with Dkt. No. 12.)
Construed as liberally as possible, Plaintiff's revised Amended Complaint alleges that she formed clothing brands and has been targeted and harassed by several online companies, people, and government entities. (See generally Dkt. No. 12.) The caption of the revised Amended Complaint includes the following defendants who were also included in the Complaint: Mark Williams, Kyle Piersall, John De Traglia, Joseph Aiello, Brian Baye, Marissa Vomer, K. Phillips, Benny Grullon, Derek Schultz, Reginald Sanders, Brian French, Hiram Rios, New York State Judge Louis L. Stanton, New York State Erap officials unknown John Does, New York State Attorney Letitia James, New York Senator Chuck Schumer, Amazon.com, Jeff Bezio CEO of Amazon.com, Facebook.com, Mark Zuckerberg CEO of Facebook, Google.com, Sergin Brin of Google, Larry Page of Google, Sundar Pichai CEO of Google, Zazzle.com, Robert Beaver CEO of Zazzle, Cafepress.com, Bob Marino CEO of Cafepress.com, Fred Durham of Cafepress.com, Redbubble.com, Barry Newstead of Redbubble.com, Martin Hopskin of Redbubble.com. (Dkt. No. 12 at 1.) In addition, the revised Amended Complaint adds defendants Jason Apfel CEO of fragrance.net, David Brown CEO of Networksolutions.com, Scott Wagner CEO of GoDaddy, Sean Moriarty CEO of ENOM, Elliot Noss CEO of Enom and Tucows, Jeff Berry CEO of Huge Domains, Andrew Berry CEO of Huge Domains, Domenico Sole CEO of Gucci, Vilnius Koliz CEO of Vostok Watches, Koliz Vostoc CEO of Costok Europe Watches, David McConnell of Gorgeous Cosmetics, Helen Gibson CEO of Hello Gorgeous, and John Does (unknown co-conspirators). (Dkt. No. 12 at 1-2.)
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)).
The revised Amended Complaint does not include Utica New York Police Department and City of Utica in New York State as defendants. Those municipal entities were included as defendants in the Complaint.
The Clerk of the Court is directed to add these individuals to the docket as defendants.
The revised Amended Complaint-like the Complaint-is a series of run-on sentences that are difficult to decipher and fail to include specific allegations of actions taken by individuals or entities. By way of example, the revised Amended Complaint alleges:
A criminal complaint against the tech-giants Google,Amazon,redbubble,zazzle.com,cafepress.com redbubble.com,facebook.com,yahoo.com,and associates, for,cyberstalking,stalking,plaintiff and plaintiff's top brands GORGEOUS JEANS INTERNATIONAL and INSIDE LIMOS CLOTHING and INSIDE LIMOS ENTERPRISES and obvious stalking to residence,and the Utica New York police following plaintiff to park multiple times,and Utica Police department intimidating,and refusing to enforce criminal acts upon violations that plaintiff has had to call the police on.(Dkt. No. 12 at 6 [errors in original].)
Notwithstanding, based on the undersigned's review of the revised Amended Complaint, it generally appears to allege Plaintiff's clothing companies have been targeted by “online tech giants,” which have “embezzle[d] [P]laintiff[']s brand and brand products profits.” (Dkt. No. 12 at 4.) Plaintiff alleges that she has received unwanted and unusual police contact and that her friends and associates have complained to her about receiving the same unusual harassment-type of conduct related to Plaintiff. (Id.)
Plaintiff alleges that she frequented Miller Park in Utica, New York. (Dkt. No. 12 at 7.) Plaintiff alleges that when she would go to Miller Park, Utica police officers would also be present in the park and that the police officers' presence in the park at the same time as Plaintiff put her in “fear of [her] safety and well being” such that she “stopped going to [the] park in fear of being shot by the [U]tica police.” (Id.)
Plaintiff alleges that, at some point in time, she called the police regarding issues she was having with third-party, Biory Chavez Tinco. (Id. at 8.) Plaintiff alleges that she attempted to pursue charges against Mr. Tinco and to obtain a restraining order against him, but that the Utica police officers refused to arrest Mr. Tinco or assist Plaintiff in obtaining an order of protection. (Id.)
Plaintiff alleges that, at some point in time, she went to get her mail and an unnamed maintenance person “came out and provoked [P]laintiff into accidentally macing,” the maintenance person then called the police, Plaintiff was arrested, and paid a $300 fine. (Id.)
It is unclear if Plaintiff intended to state that she “accidentally menaced” the maintenance person or that she “accidentally” used mace or some form of pepper spray.
Plaintiff alleges that a building located next to her residence is a nuisance because it is a gathering place for drug users and dealers. (Id. at 9.) Plaintiff alleges that she sought police assistance “multiple times” to address individuals from the property next door who trespassed on to her property. (Id.) However, Plaintiff alleges that the Utica police refused to arrest individuals that criminally trespassed and did not conduct warrant checks on the trespassers. (Id.)
Plaintiff alleges that Defendant Derek Schultz filed a false statement that Plaintiff was suffering from mental illness. (Id.) Plaintiff alleges that Defendant Marissa Vomer filed a false statement stating that Plaintiff was rambling. (Id.) Plaintiff alleges that Defendant Reginald Sanders retaliated against Plaintiff by refusing to arrest third-party T. Jones and stating to Plaintiff “you wanted Utica police fired[.] [W]hy should we help you[?]” (Id. at 9-10.)
Plaintiff alleges that Defendant Louis Stanton was the assigned judge to another one of her civil cases and that he conspired to violate Plaintiff's right to a jury trial. (Id. at 10-11.) More specifically, Plaintiff alleges that Defendant Stanton dismissed Plaintiff's civil case against “tech-giants” via electronic notice so that Plaintiff would not receive the notice in time to appeal the decision. (Id. at 11.)
Plaintiff alleges that she contacted the New York State Attorney General's office multiple times regarding the harassment she experienced by “one or more of the tech-giants” and the stalking that she experienced at Miller Park by the Utica police officers but that the New York State Attorney General's office informed her that it does not investigate those matters and directed Plaintiff to obtain her own attorney. (Id. at 11-12.)
Plaintiff alleges that unnamed “New York State Officials” deprived her of “Erap arrears” by incorrectly and “intentionally posting online that [P]laintiff had not uploaded [the] required documents.” (Id. at 13.)
Plaintiff alleges that she contacted Defendant Schumer to help her “stop and collect the unauthorized apparel from [A]mazon warehouses” after Plaintiff saw that her clothing line brand was being improperly sold by Defendant Amazon.com. (Id. at 13.) Plaintiff alleges that Defendant Schumer failed to assist her because his family members are employed by Defendant Amazon.com. (Id. at 13-14.)
Plaintiff alleges that third-party Yahoo.com and Defendants Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and Zuckerberg, conspired to target, cyberstalk, and stalk Plaintiff to interfere with her civil right to make online profits. (Id. at 14.) Plaintiff also alleges that Defendants Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Jeff Bezos, and Mark Zuckerberg racially targeted her because she is a Black American and they are white or of Asian descent. (Id.)
Plaintiff alleges that Defendants used their computers and servers to redirect individuals searching for Plaintiff's websites to other websites which allowed Defendants to collect profits for themselves and reduce Plaintiff's profits. (Id. at 14-15.) Plaintiff alleges that Defendants disregarded her trademarks and used their computers and servers to allow others to sell counterfeit products of Plaintiff's items. (Id. at 16-19.) Plaintiff alleges that Defendants “coierc[ed] other designers to infringe and manufacture goods of [P]laintiff[']s to sell on their websites.” (Id. at 21.)
Plaintiff alleges that she contacted the Federal Bureau of Investigations (“FBI”) several times about her concerns but that the FBI “had been working with the Tech Giant companies and giving the tech Giants special treatment for their acts,[ ] ignoring complaints.” (Id.)
Based on these factual allegations, Plaintiff appears to assert the following fifty-two claims: (1) a claim against Utica Police Department for its conduct at Miller Park in violation of the Fourth Amendment and 42 U.S.C. § 1983; (2) a claim against Utica Police Department for its refusal to arrest Mr. Tinco and obtain an order of protection in favor of Plaintiff in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; (3) a claim against Utica Police Department for its refusal to arrest individuals who trespassed on Plaintiff's residence in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; (4) a claim against Defendant Stanton for violating Plaintiff's due process right to a jury trial pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; (5) a claim against Defendant Stanton for sending a dismissal notice electronically in violation of the First Amendment and 42 U.S.C. § 1983; (6) a claim against Defendant New York State Attorney General's Office for failure to investigate and enforce the laws in violation of the Fourteenth Amendment and 42 U.S.C § 1983; (7) a claim against unnamed New York State officials for interfering with Plaintiff's right to equal housing in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; (8) a claim against Defendant Schumer for violating Plaintiff's right to equal protection under the law pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; (9) a claim against third party Yahoo.com and Defendants Amazon.com, Bezio, Facebook.com, Zuckerberg, Google.com, Brin, Page, Pichai, Zazzle.com, Beaver, Cafepress.com, Marino, Durham, Redbubble.com, Newstead, Hopskin, Apfel, Brown, Wagner, Moriarty, Noss, Jeff Berry, and Andrew Berry (collectively “Defendant Tech Giants”) for conspiracy to deprive Plaintiff of equal protection under the law pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; (10) a claim against Defendant Tech Giants for violating the Sherman Act pursuant to 15 U.S.C. related to her website www.gorgeousjeans.com; (11) a claim against Defendant Tech Giants for violating the Sherman Act pursuant to 15 U.S.C. related to her website www.insidelimosclothing.com; (12) a claim against Defendant Tech Giants for trademark infringement in violation of 15 U.S.C. § 1125(d); (13) a claim against Defendant Tech Giants for fraudulent concealment; (14) a claim against Defendant Schumer for fraudulent concealment; (15) a claim against Defendant Tech Giants for computer fraud in violation of 18 U.S.C. 1030 related to her brand GORGEOUS JEANS INTERNATIONAL INC; (16) a claim against Defendants Amazon.com, Bezio, Facebook.com, Zuckerberg, Google.com, Brin, Page, Pichai, Zazzle.com, Beaver, Cafepress.com, Marino, Durham, Redbubble.com, Newstead, and Hopskin, for computer fraud in violation of 18 U.S.C. 1030 related to her brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISES; (17) a claim against Defendant Tech Giants for wire fraud; (18) a claim against Defendant Tech Giants for wire fraud related her brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISES and its associated website; (19) a claim against Defendant Tech Giants for mail fraud related her brand GORGEOUS JEANS INTERNATIONAL; (20) a claim against Defendant Tech Giants for mail fraud related her brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISES; (21) a claim against Defendant Tech Giants for misappropriation of trade secrets; (22) a claim against Defendant Tech Giants and Defendants Sole, Koliz, and Vostoc for engaging in economic espionage; (23) a claim against Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson for engaging in conversion related to Plaintiff's company GORGEOUS JEANS INTERNATIONAL; (24) a claim that Defendant Tech Giants engaged in conversion related to Plaintiff's brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISES; (25) a claim that Defendant Tech Giants engaged in constructive fraud; (26) a claim that Defendant Tech Giants engaged in fraudulent misrepresentation or false advertising in violation of 15 U.S.C. § 1125(a) related to Plaintiff's brand GEORGEOUS JEANS INTERNATIONAL; (27) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in fraudulent misrepresentation or false advertising in violation of 15 U.S.C. § 1125(a) related to Plaintiff's brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISES; (28) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in tortious interference with business relations related to Plaintiff's online websites; (29) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in international misrepresentation; (30) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in unfair competition and deceptive trade practices in violation of 15 U.S.C. § 1125(c) related to Plaintiff's brand GORGEOUS JEANS INTERNATIONAL; (31) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in unfair competition and deceptive trade practices in violation of 15 U.S.C. § 1125(c) related to Plaintiff's brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISES; (32) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in idea misappropriation related to Plaintiff's brand GORGEOUS JEANS INTERNATIONAL; (33) a claim that Defendants Amazon.com, Bezio, Facebook.com, Zuckerberg, Google.com, Brin, Page, Pichai, Zazzle.com, Beaver, Cafepress.com, Marino, Durham, Redbubble.com, Newstead, and Hopskin engaged in idea misappropriation related to Plaintiff's brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISE; (34) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in primary/secondary trademark infringement/false designation of origin/false advertising in violation of 15 U.S.C. § 1125(a) related to Plaintiff's brand GORGEOUS JEANS INTERNATIONAL; (35) a claim that Defendants Amazon.com, Bezio, Facebook.com, Zuckerberg, Google.com, Brin, Page, Pichai, Zazzle.com, Beaver, Cafepress.com, Marino, Durham, Redbubble.com, Newstead, and Hopskin engaged in primary/secondary trademark infringement/false designation of origin/false advertising in violation of 15 U.S.C. § 1125(a) related to Plaintiff's brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISE; (36) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in trademark infringement in violation of 15 U.S.C. § 1125(c) related to Plaintiff's brand GORGEOUS JEANS INTERNATIONAL; (37) a claim that Defendant Tech Giants engaged in trademark infringement in violation of 15 U.S.C. § 1125(c) related to Plaintiff's brand INSIDE LIMOS CLOTHING/INSIDE LIMOS ENTERPRISE; (38) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson harassed Plaintiff in violation of N.Y. Penal Law § 240; (39) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson cyberstalked Plaintiff in violation of 18 U.S.C. § 2261(a) and N.Y. Penal Law § 120.45; (40) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in fraud in violation of 15 U.S.C. § 1064 and 15 U.S.C. § 1125; (41) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in cybersquatting in violation of 15 U.S.C. § 1125(a)(d); (42) a claim that Defendants Williams, Piersall, De Traglia, Aiello, Baye, Vomer, Phillips, Grullon, Schultz, Sanders, French, Rios, Stanton, New York State Erap officials unknown John Does, New York State Attorney Letitia James, Schumer, Amazon.com, Bezio, Facebook.com, Zuckerberg, Google.com, Brin, Page, Pichai, Zazzle.com, Beaver, Cafepress.com, Marino, Durham, Redbubble.com, Newstead, and Hopskin aided and abetting the harassment of Plaintiff; (43) a claim that Defendant New York State Attorney General engaged in gross negligence in violation of New York common law; (44) a claim that Defendant Tech Giants engaged in embezzlement; (45) a claim that Defendant Tech Giants engaged in money laundering; (46) a claim that Defendants Williams, Piersall, De Traglia, Aiello, Baye, Vomer, Phillips, Grullon, Schultz, Sanders, French, Rios, Stanton, New York State Attorney Letitia James, and Schumer engaged in obstruction of justice; (47) a claim that Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson engaged in a hate crime; (48) a claim requesting “injunction relief” against Defendant Tech Giants and Defendants Sole, Koliz, Vostoc, Mcconnell, and Gibson; (49) a claim against Defendants for engaging in racketeering in violation of 18 U.S.C. § 1962(a); (50) a claim against Defendants for engaging in racketeering in violation of 18 U.S.C. § 1962(b); (51) a claim against Defendants for engaging in racketeering in violation of 18 U.S.C. § 1962(c); and (52) a claim against Defendants for engaging in racketeering in violation of 18 U.S.C. § 1962(d). (See generally Dkt. No. 12.)
As set forth above in note 2, the revised Amended Complaint did not include the Utica Police Department as a defendant.
See, supra, note 5.
See, supra, note 5.
Throughout the revised Amended Complaint, Plaintiff often refers to “Defendant Tech Giants” as defendants #17-40 based on the numbering she assigned them in the caption. (Dkt. No. 12 at 1-2.) The undersigned notes that Plaintiff's assigned numbering system omitted the number 28. (Id. at 1.)
As relief, Plaintiff seeks, inter alia, $100,000,000,000.00 in compensatory damages, permanent injunctive relief against “the named Tech-Giants,” “Royalty damages $20 Billion Dollars,” “Corrective Advertising damages of $10 Billion Dollars,” punitive damages in the amount of $300,000,000,000.00, and “PRO SE fee[]s $1 Billion dollars.” (Id.)
II. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
Having found that Plaintiff meets the financial criteria for commencing this action in forma pauperis, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e). Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “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 in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Additionally, when reviewing a complaint, a court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
III. 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 revised Amended Complaint with this principle in mind, I recommend that all causes of action be dismissed.
The undersigned and Judge Suddaby were extremely liberal in the construction of Plaintiff's Complaint. (Dkt. No. 1; Dkt. No. 6; Dkt. No. 11.) However, it is clear that Plaintiff's revised Amended Complaint is frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). By way of example, the revised Amended Complaint alleges that:
[after] discovering in 2023, that the Tech Giant defendants #17-40 where working in concert with the Federal Bureau of investigations,enjoining them in their acts to stop and suppress plaintiffs multiple criminal complaints against the online Tech Giants and co-conspirators. The Plaintiff became aware of the actual facts of the unfair advantage in the continued acts against plaintiff and plaintiffs brands and brands product lines from multiple media sources in 2023, accusing the FBI of operating in concert with the online Tech-Giants,in which the Tech-Giants refused to stop or cease the online TechGiants repeated acts against online brand companies or complaints,allowing the Tech-Giants to continue their acts.(Dkt. No. 12 at 15 [errors in original].)
A “[p]laintiff's beliefs-however strongly he may hold them-are not facts.” Morren v. New York Univ., 20-CV-10802, 2022 WL 1666918, at *18 (S.D.N.Y. Apr. 29, 2022) (citation omitted), report and recommendation adopted by, 2022 WL 1665013 (S.D.N.Y. May 25, 2022). Plaintiff provides no factual basis for her assertions that she was the victim of a broad conspiracy perpetrated by the “Tech Giants,” FBI, Utica Police Department, and third parties. See Lefkowitz v. John Wiley & Sons, Inc., 13-CV-6414, 2014 WL 2619815, at *10 (S.D.N.Y. June 2, 2014) (complaint must set forth facts showing basis for information and belief); Johnson v. Univ. of Rochester Med. Ctr., 686 F.Supp.2d 259, 266 (W.D.N.Y. 2010) (even where necessary evidence is in “exclusive control of the defendant, . . . plaintiff must still set forth the factual basis for that belief”).
Plaintiff fails to provide “any plausible support for [her] claims and [the allegations contained in the revised Amended Complaint] rise to the level of irrational.” Muzumala v. Unknown Federal Agents, 22-CV-7851, 2023 WL 5530308, at *4 (S.D.N.Y. Aug. 28, 2023) (citing Livingston v. Adirondack Bev. Co., 141 F.3d 434, 437 (2d Cir. 1998)). Instead, “Plaintiff's allegations amount to conclusory claims and suspicions that are not plausible and must be dismissed as frivolous.” Muzumala, 2023 WL 5530308, at *4 (citing Kraft v. City of New York, 823 Fed.Appx. 62, 64 (2d Cir. 2020) (holding that “the district court did not err in sua sponte dismissing the complaint as frivolous,” based on the plaintiff's allegations that he had “been the subject of 24-hour, multi-jurisdictional surveillance by federal ‘fusion centers' and the New York State Intelligence Center, which put a ‘digital marker' on him in order to collect his personal data and harass him.”); Khalil v. United States, 17-CV-2652, 2018 WL 443343, at *4 (E.D.N.Y. Jan. 12, 2018) (dismissing complaint where “[p]laintiff allege[d] a broad conspiracy involving surveillance of and interference with his life by the United States and various government actors” because his allegations were “irrational and wholly incredible”)).
As a result, I recommend that Plaintiff's revised Amended Complaint be dismissed in its entirety because it is frivolous. See Uzamere v. Uzamere, 22-CV-4876, 2022 WL 4451107, at *4 (E.D.N.Y. Sept. 23, 2022) (citing Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (holding that even a well-pleaded complaint may be dismissed as factually frivolous “if the sufficiently well-pleaded facts are clearly baseless-that is, they are fanciful, fantastic, or delusional.”); Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the whole incredible, whether or not there are judicially noticeable facts available to contradict them.”)) (dismissing as frivolous the plaintiff's complaint that “contains allegations of the delusional variety.”).
To the extent that the Court rejects this recommendation, it is requested that the revised Amended Complaint be returned to the undersigned for a review pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii).
IV. 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.
Out of deference to Plaintiff's pro se status, the undersigned previously recommended that she be permitted to amend her Complaint. (Dkt. No. 6 at 22-25.) However, it is clear that further amendment would be futile and I therefore recommend that the Court decline to grant Plaintiff leave to amend. See Muzumala v. Unknown Federal Agents, 22-CV-7851, 2023 WL 5530308, at *5 (S.D.N.Y. Aug. 28, 2023) (declining to grant the plaintiff leave to amend the frivolous complaint because the defects in the complaint cannot be cured with an amendment); Allen v. Tenev, 21-CV-4119, 2021 WL 3848871, at *3 (S.D.N.Y. Aug. 26, 2021) (declining to grant the plaintiff leave to amend after dismissing his factually frivolous claims).
Moreover, the undersigned notes that Plaintiff has already amended the complaint twice, including one amendment that was filed after the Court's analysis identifying the deficiencies in the Complaint. (See generally docket sheet.) “In general, a plaintiff's failure to fix deficiencies in the previous pleading, after being provided notice of them, is alone sufficient ground to deny leave to amend.” Sherman v. Yonkers Public Schs., 21-CV-7317, 2023 WL 137775, at *11 (S.D.N.Y. Jan. 9, 2023) (citing Nat'l Credit Union Admin. Bd. v. U.S. Bank Nat'l Ass'n, 898 F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the deficiencies in his complaint when he first amended, he clearly has no right to a second amendment even if the proposed second amended complaint in fact cures the defects of the first. Simply put, a busy district court need not allow itself to be imposed upon by the presentation of theories of seriatim.”); In re Eaton Vance Mut. Funds Fee Litig., 380 F.Supp.2d 222, 242 (S.D.N.Y. 2005) (denying leave to amend because “the plaintiffs have had two opportunities to cure the defects in their complaints, including a procedure through which the plaintiffs were provided notice of defects in the Consolidated Amended Complaint by defendants and given a chance to amend their Consolidated Amended Complaint,” and “plaintiffs have not submitted a proposed amended complaint that would cure these pleading defects”), aff'd sub nom.; Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per curiam) (“[P]laintiffs were not entitled to an advisory opinion from the Court informing them of the deficiencies in the complaint and then an opportunity to cure those deficiencies.”)). As a result, I recommend that the revised Amended Complaint be dismissed without leave to replead. See Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir. 2003) (quoting Dluhos v. Floating & Abandoned Vessel, Known as “New York,” 162 F.3d 63, 69 (2d Cir. 1998)) (finding that the “District Court did not abuse its discretion in denying [the plaintiff] leave to amend the complaint because there was a ‘repeated failure to cure deficiencies by amendments previously allowed.'”); Salinger v. Projectavision, Inc., 972 F.Supp. 222, 236 (S.D.N.Y. 1997) (“Three bites at the apple is enough.”).
ACCORDINGLY, it is
ORDERED that the Clerk of the Court add the following thirteen individuals to the docket as defendants: (1) Jason Apfel CEO of fragrance.net, (2) David Brown CEO of Networksolutions.com, (3) Scott Wagner CEO of GoDaddy, (4) Sean Moriarty CEO of ENOM, (5) Elliot Noss CEO of Enom and Tucows, (6) Jeff Berry CEO of Huge Domains, (7) Andrew Berry CEO of Huge Domains, (8) Domenico Sole CEO of Gucci, (9) Vilnius Koliz CEO of Vostok Watches, (10) Koliz Vostoc CEO of Costok Europe Watches, (11) David McConnell of Gorgeous Cosmetics, (12) Helen Gibson CEO of Hello Gorgeous, and (13) John Does (unknown co-conspirators); and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD Plaintiff's revised Amended Complaint (Dkt. No. 12) because it is frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i); and it is further respectfully
ORDERED that the Clerk of the Court shall file a copy of this 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 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).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). 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.P. 6(a)(1)(C).