Opinion
6:24-cv-0722 (BKS/TWD)
07-16-2024
ANNAMAY SHIBLEY, et al., Plaintiffs, v. JENNIFER BIXLEROND, et al., Defendants.
ANNAMAY SHIBLEY, Plaintiff, pro se CHRISTOPHER WHEELER, SR., Plaintiff, pro se
ANNAMAY SHIBLEY, Plaintiff, pro se
CHRISTOPHER WHEELER, SR., Plaintiff, pro se
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent to the undersigned for review a complaint submitted by pro se plaintiffs Annamay Shibley and Christopher Wheeler, Sr. (“Plaintiffs”), together with two applications to proceed in forma pauperis (“IFP”). Dkt. Nos. 1, 3, 4. For the reasons set forth below, the Court recommends the complaint be dismissed.
II. IFP APPLICATIONS
Plaintiffs have not paid the statutory filing fee for this action and seek leave to proceed IFP. Dkt. Nos. 3, 4. Upon review, the Plaintiffs' IFP applications demonstrate economic need. See id. Therefore, Plaintiffs are granted permission to proceed IFP.
III. COMPLAINT
Plaintiffs commenced the instant action utilizing the Court's form complaint for civil rights actions, asserting claims under 42 U.S.C. § 1983. See Dkt. No. 1 at 3. The complaint lists four defendants: “Jennifer bixlerond” of the Oneida County Sheriff's Department; the Department of Social Services (“DSS”); the Mohawk Valley Community Action Agency; and Heidi Garber. Id. at 2-3.
Citations to Plaintiffs' submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
The Court notes, while Plaintiffs listed “Jennifer bixlerond” as “Defendant No. 1” on the second page of the complaint, see Dkt. No. 1 at 2, in a later portion of the same document, see Dkt. No. 1 at 4, and on both IFP applications, see generally, Dkt. Nos. 3, 4, Plaintiffs appear to refer to the same individual as “Jennifer Bixler.”
Plaintiff Annamay Shibley states, on February 2, 2021, “2 of my children were taken by CPS.” Id. at 8. CPS accused her of “abusing my children even though the babysitter named Heidi garber was the one that abused my children and amidded it to CPS.” Id. “CPS wanted the babysitter my boyfriend and myself to take a lie detector test.” Id. Garber “refused to take a test” but Shibley and her boyfriend agreed to take the test at the Oneida County Jail. Id. After she completed the test,
As discussed in greater detail below, the complaint is signed only by Annamay Shibley. See Dkt. No. 1 at 7.
they said I failed the test but when the officer showed me the test I did not see where I failed the test. But they still arrested me and I spent one night in jail but when I went to court the next day the judge released me and told me that there was not enough evidence to prove I did anything wrong.Id. She later learned “the charges were dismissed and sealed.” Id.
Shibley avers “CPS did not have a warrant to remove my children from my care. I did not get a court date for the removal order of my children until a week and a half after my children were already removed.” Id. She states she has “done everything that the cps workers wanted me to do” including “mental health councling, parenting class, anger management class, domestic violence classes and also find better housing for myself and my children.” Id. Plaintiff also “had 2 more children” after the first two were removed from her home “and they did not have a warrant to remove them children both from St. Luke's hospital the days that they were born.” Id.
She has not abused any of her children, and seeks to have the children returned to her home, arguing “CPS should have never taken my children after they got the confession out of the babysitter.” Id. at 9. Further, she “would like the babysitter held accountable for her actions.” Id. Additionally, in October of 2023, “Laurie Ellis who used to work for Onidea County dss” entered Shibley's residence “without knocking and also after numerous times I told her she was not welcome into my house.” Id. Plaintiff “had to call the police and make a police report on her once I made a police report she took herself off of my family court case.” Id.
Shibley “was suppost to have home visits back in 2022 and they took them away all because someone lied and said that I took inappropite pictures of one of my children during a visit and also abused my child during a visit but yet that never happened.” Id. The visit during which the alleged abuse occurred “was conducted at The House of good Shepard and I had many staff in and out of the room that cps tried to say it happened at.” Id. Additionally, DSS did not have custody of the child Plaintiff allegedly abused at the time, as the child's biological father had custody. Id. “He had custody and then abandoned her and left her with his ex girlfriend. I then fought like no tomorrow to have the foster parents gain custody of her so she was back with her siblings and I now feel like that was a big mistake.” Id.
From the day Shibley's four children entered foster care, the foster parents allowed the children to be hurt and have failed to contact her “until days after or not being fulted for it.” Id. For example, one of the children “was bitten by a dog and could have been blind and they still have the dog, they want to get rid of the dog and that they have the dog locked up away from the kids.” Id. However, it is “very unlikely that they are able to keep that dog away far from 11 kids all under 10 years old!” Id.
“DSS has not done everything to make sure I can get my children back, I think there goal for all children around the world is to human traffic them. They have been wanting to terminate my rights from the day they wrongfully took my children!” Id. at 10. Furthermore, “it's wrong that Christopher Wheeler, who has raised” two of the children from August 23, 2019, until February 24, 2021, “with out a problem is not allowed to see or talk to them just because he is a registered sex offender but yet cps had no problems with my children being in his care from Feb 11th of 2020 til they were removed.” Id. “We had several cps cases called on us between that time and IF cps believed they were in danger why didn't cps remove the kids then.” Id.
Plaintiff seeks to “have the phone records from cps and the House of good shepard pulled and listened to.” Id. She states “I just want to be able to get my children back and I want to get paid for my pain and suffering I have been through. I have ptsd from all of this nonsense!” Id.
IV. STANDARD OF REVIEW
Section 1915 of Title 28 requires a district court to dismiss an IFP complaint if the action is frivolous or malicious, fails to state a claim upon 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)-(iii); 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, emphasis in original). 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). However, “the 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.
Moreover, a court should not dismiss a pro se complaint “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.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required 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).
V. ANALYSIS
A. Section 1983
Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983, which “establishes a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States.” German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y.) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
To state a valid claim under § 1983, a plaintiff must allege the challenged conduct: (1) was attributable to a person acting under color of state law; and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). Even affording the complaint a liberal construction, Plaintiffs have failed to state a claim under § 1983 against any of the named defendants.
1. Oneida County Sheriff Jennifer Bixlerond
The first defendant identified in the Plaintiffs' complaint is Jennifer Bixlerond. Dkt. No. 1 at 2. Plaintiffs indicate Bixlerond is employed by the Oneida County Sheriff's Department and they seek to hold her liable in her official capacity. See id. Plaintiffs state “Jennifer Bixler was personally involved in the wrongful actions of” two of Shibley's children “being removed from my care.” Id. at 4.
“[A] § 1983 suit against a municipal officer in his official capacity is treated as an action against the municipality itself.” Coon v. Town of Springfield., 404 F.3d 683, 687 (2d Cir. 2005); see also, e.g., Polinski v. Oneida Cnty. Sheriff, No. 6:23-CV-0316 (DNH/ML), 2023 WL 2988753, at *5 (N.D.N.Y. Apr. 18, 2023) (“A claim against [an] Oneida County Sheriff in his official capacity, is essentially a suit against the Oneida County Sheriff's Department.”) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985); Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007)), report and recommendation adopted, 2023 WL 3344060 (N.D.N.Y. May 10, 2023), appeal dismissed, No. 23-867, 2023 WL 8357375 (2d Cir. Oct. 12, 2023). However, a municipality such as Oneida County may be “liable under section 1983 only if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)) (additional citation omitted).
“The policy or custom need not be memorialized in a specific rule or regulation,” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (citations omitted), and “may be pronounced or tacit and reflected in either action or inaction.” Cash v. Cnty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011). Municipal liability under Monell may be established by way of:
(1) a policy formally adopted and endorsed by the municipality; (2) actions taken by policymaking officials that caused the particular deprivation alleged; (3) practices by subordinate officials that are not expressly authorized but are so widespread and consistent that policymakers must have been aware of them; or (4) a failure by policymakers to train or supervise that amounts to “deliberate indifference” to the rights of those who come into contact with the inadequately trained or supervised municipal employees.Crawley v. City of Syracuse, 496 F.Supp.3d 718, 729 (N.D.N.Y. 2020) (citing Deferio v. City of Syracuse, 770 Fed.Appx. 587, 589 (2d Cir. 2019) (Summary Order)) (additional citation omitted). “Once a plaintiff has demonstrated the existence of a municipal policy, a plaintiff must then establish a causal connection, or an ‘affirmative link,' between the policy and the deprivation of his constitutional rights.” Deferio, 770 Fed.Appx. at 590 (citing Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
In the instant complaint, Plaintiffs have failed to identify any municipal policy or custom or allege facts plausibly suggesting a basis for municipal liability. Therefore, they have failed to state a viable Monell claim, and dismissal as to Bixlerond is warranted. See, e.g., Polinski, 2023 WL 2988753, at *5-7.
2. Department of Social Services, Grade B Supervisor
The complaint next identifies as a defendant the “Department of Social Services.” Dkt. No. 1 at 2. Yet, “Grade b Supervisor” is listed as the department's “Job or Title” and the complaint references “Grade B supervisor . . . Laurie Ellis.” Id. at 4; see also id. at 9. Irrespective of whether Plaintiffs intend to pursue a claim against the Oneida County DSS or Ellis in her official capacity, however, the complaint fails to state a viable claim.
“Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit . . . and no claims lie directly against the Department.” Hoisington v. Cnty. of Sullivan, 55 F.Supp.2d 212, 214 (S.D.N.Y. 1999) (citations omitted). Further, as explained above, Plaintiffs have failed to allege facts plausibly suggesting a basis for municipal liability as to Oneida County. See supra Section V.A.1. Therefore, to the extent Plaintiffs intend to state a claim against the Oneida County DSS, dismissal is warranted. See, e.g., White v. Syracuse Police Dep't, No. 5:18-CV-1471 (GTS/DEP), 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (“I would ordinarily recommend that, for the sake of judicial efficiency, the court substitute the . . . [municipality] in place of the” municipal department, however, because the “plaintiff's complaint contains no factual allegations that would support a Monell claim against the” municipality, “I recommend dismissal of plaintiff's claims asserted against the” department.), report and recommendation adopted, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019).
Alternatively, to the extent Plaintiffs intended to state a claim against Oneida County DSS Supervisor Laurie Ellis in her official capacity, as explained above, “a § 1983 suit against a municipal officer in his official capacity is treated as an action against the municipality itself.” Coon, 404 F.3d at 687. Therefore, the Plaintiffs' failure to identify a basis for municipal liability as to Oneida County also precludes a viable claim against the County DSS Supervisor in her official capacity. See supra Section V.A.1; see also, e.g., Welch v. Fitzgerald, No. 5:18-CV-0461 (MAD/ATB), 2018 WL 6173796, at *6 (N.D.N.Y. May 16, 2018), report and recommendation adopted, 2018 WL 4795759 (N.D.N.Y. Oct. 4, 2018). Additionally, Laurie Ellis “is not named or identified in the caption or list of parties” as a defendant, therefore, any claim against her in her individual or official capacity would be subject to dismissal for failure to state a claim. Burrell v. DOCCS, 655 F.Supp.3d 112, 125 (N.D.N.Y. 2023).
3. Mohawk Valley Community Action Agency
The third defendant listed in the complaint is the Mohawk Valley Community Action Agency daycare center. Dkt. No. 1 at 3. Plaintiffs seek to hold this defendant liable in its official capacity. See id. However, Plaintiffs have not alleged the entity is a state actor for purposes of § 1983, nor have they asserted any facts which would permit the Court to draw that inference. See id. at 3-10. Indeed, the sole factual assertion concerning this defendant is that “[t]here were multiple times that Mohawk Valley Community Action Agency were involved in calling CPS to have my children removed.” Id. at 4. Accordingly, the undersigned recommends dismissal of the complaint as to the Mohawk Valley Community Action Agency. See Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (explaining, “[b]ecause the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.”) (citation omitted); see also, e.g., Burgdorf v. Betsy Ross Nursing & Rehab. Ctr. Inc., No. 6:22-CV-0987 (DNH/ATB), 2023 WL 112092, at *5 (N.D.N.Y. Jan. 5, 2023) (recommending dismissal of § 1983 claims against three entities where the plaintiff had “not alleged any facts suggesting that these entities are state actors under any of the aforementioned exceptions, or describing how their actions are otherwise fairly attributable to the state.”) (internal quotations omitted), report and recommendation adopted, 2023 WL 418045 (N.D.N.Y. Jan. 26, 2023).
4. Heidi Garber
The final defendant listed in the complaint is Heidi Garber, in her individual capacity. Dkt. No. 1 at 3. Plaintiffs state Garber worked as a babysitter, see id., and allege she “abused” two of the children, admitted such conduct to Plaintiff(s), and “refused to take” a “lie detector test” regarding the incident, Id. at 5, 8. However, Plaintiffs do not assert any facts from which the Court could conclude Garber is a state actor or that her alleged actions are fairly attributable to the state. Therefore, the undersigned recommends dismissal of the complaint as to Heidi Garber. See supra Section V.A.1; see also Basile v. Connolly, 538 Fed.Appx. 5, 7 (2d Cir. 2013) (Summary Order) (“private individuals . . . cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation that they acted under color of state law.”).
B. Younger Abstention, Rooker-Feldman, and the Domestic Relations Exception
See generally, Younger v. Harris, 401 U.S. 37 (1971).
See generally, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
Next, from what the undersigned can glean, Plaintiffs seek both monetary damages and custody of Shibley's four children. See Dkt. No. 1 at 6, 8-10. Although the nature of Plaintiffs' complaint makes it difficult to determine which of the following doctrines apply, based on the relief sought, this Court likely lacks jurisdiction to hear and/or should abstain from hearing the Plaintiffs' claims.
“[I]n the event the underlying family court proceedings are pending, such claims are likely barred by the Younger abstention doctrine.” Walker v. O'Connor, No. 1:22-CV-0581 (DNH/TWD), 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022) (citing Younger v. Harris, 401 U.S. 37 (1971)) (additional citation omitted), report and recommendation adopted, 2022 WL 2805462 (N.D.N.Y. July 18, 2022). “Younger generally requires federal courts to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.” Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (citing Younger, 401 U.S. at 43-44). “Younger abstention is required when three conditions are met: (1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.” Id. (citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)).
Courts in this circuit have found these conditions to be satisfied in matters involving issues of child custody. See, e.g., Walker, 2022 WL 2341420, at *6 (collecting cases applying the Younger abstention doctrine in the context of child custody disputes). Therefore, to the extent Plaintiffs' claims involve a “custody dispute [that] is continuing in New York State Family Court, this Court should abstain from interfering with that process.” Id.; see also Terpening v. McGinty, No. 1:21-CV-1215 (GTS/CFH), 2022 WL 17418268, at *6 (N.D.N.Y. Oct. 5, 2022) (“It is unclear whether there are pending family court proceedings in which plaintiff seeks the Court's intervention .... However, ‘the heart of this case is a child custody dispute, a matter rightfully reserved for state courts.'”) (citing McKnight v. Middleton, 699 F.Supp.2d 507, 520 (E.D.N.Y. 2010), aff'd, 434 Fed.Appx. 32 (2d Cir. 2011)) (additional citation omitted), report and recommendation adopted, 2022 WL 17415121 (N.D.N.Y. Dec. 5, 2022).
Alternatively, to the extent the Plaintiffs' claims concern a state court proceeding which has concluded, such claims are likely barred by the Rooker-Feldman doctrine. See, e.g., Amato v. McGinty, No. 1:21-CV-0860 (GLS/TWD), 2022 WL 226798, at *10 (N.D.N.Y. Jan. 26, 2022); Walker, 2022 WL 2341420, at *6. “Under the Rooker-Feldman doctrine, a federal district court lacks authority to review a final state court order or judgment where a litigant seeks relief that invites the federal district court to reject or overturn such a final state court order or judgment.” Porter v. Nasci, No. 5:24-CV-0033 (GTS/TWD), 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92 (2005)) (additional citations omitted), report and recommendation adopted, 2024 WL 3158645 (N.D.N.Y. June 25, 2024). “The doctrine also bars the federal court from considering claims that are ‘inextricably intertwined' with a prior state court determination.” Amato, 2022 WL 226798, at *10 (citing Fernandez v. Turetsky, No. 12-CV-4092, 2014 WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014), aff'd, 645 Fed.Appx. 103 (2d Cir. 2016)) (additional citation omitted).
See also, Amato, 2022 WL 226798, at *11 (explaining, “[t]he Rooker-Feldman doctrine applies where the federal court plaintiff: (1) lost in state court, (2) complains of injuries caused by the state court judgment, (3) invites the district court to review and reject the state court judgment, and (4) commenced the district court proceedings after the state court judgment was rendered.”) (citing Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014)).
“There is no question that Rooker-Feldman bars . . . challenges to” a state “family court's decisions regarding child custody ....” Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir. 2002). Accordingly, to the extent Plaintiffs seek, in effect, an appeal from an unfavorable state court custody judgment, any such claim is barred. See Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021); Walker, 2022 WL 2341420, at *6.
Furthermore, under the domestic relations exception to the jurisdiction of federal courts, cases involving divorce, alimony, and child custody remain outside of this Court's jurisdiction. See Marshall v. Marshall, 547 U.S. 293, 308 (2006); see also, Cruz v. New York, No. 5:17-CV-0510 (BKS/TWD), 2017 WL 6021838, at *7 (N.D.N.Y. Oct. 27, 2017) (“Claims involving child custody, support, and visitation brought in federal district court in this Circuit have regularly been dismissed for lack of subject matter jurisdiction based on the domestic relations exception to federal jurisdiction.”) (collecting cases), report and recommendation adopted, 2017 WL 6001833 (N.D.N.Y. Dec. 4, 2017). “Therefore, insofar as the present pro se Complaint seeks the restoration of custody over her son, the federal courts lack jurisdiction to hear that claim, and it should be dismissed.” Reeves v. Dep't of Children, Youth & Families, No. 1:20-CV-0987 (BKS/DJS), 2020 WL 5898866, at *3 (N.D.N.Y. Sept. 4, 2020) (citation omitted), report and recommendation adopted, 2020 WL 5891564 (N.D.N.Y. Oct. 5, 2020).
C. Additional Deficiencies
Finally, notwithstanding the aforementioned issues, the complaint suffers from additional defects. First, while Christopher Wheeler, Sr., is listed as a plaintiff and has submitted an IFP application, he has not signed the compliant. See generally, Dkt. Nos. 1, 4. Thus, the complaint violates Federal Rule of Civil Procedure 11(a) and Northern District of New York Local Rule 10.1(c)(2). See, e.g., Boyle v. Town of Hammond, No. 7:08-CV-1065 (TJM/GJD), 2008 WL 11416992, at *1 (N.D.N.Y. Oct. 24, 2008) (explaining, pro se plaintiff “James F. Boyle may not represent any of the other individuals that he lists as plaintiffs. Those individuals could have signed the complaint and appeared as pro se plaintiffs, but James F. Boyle may not sign the complaint for them or proceed on their behalf.”), aff'd, 375 Fed.Appx. 85 (2d Cir. 2010); Goode v. Halderman, No. 3:11-CV-1461, 2011 WL 6122960, at *1 n.1 (D. Or. Dec. 9, 2011) (“the Complaint, while purportedly brought by [two individuals], was signed only by [one of the plaintiffs] ....a pro se Plaintiff may not bring an action on behalf of another; instead, both pro se Plaintiffs must sign every pleading or other document submitted to the Court.”) (citing Fed.R.Civ.P. 11(a)); N.D.N.Y. L.R. 10(c)(2).
The complaint also falls short of the pleading requirements set forth in Federal Rules 8 and 10. Rule 8 requires, 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). Each statement must be “simple, concise, and direct,” Fed.R.Civ.P. 8(d)(1), and provide “fair notice of the claims asserted.” Whitfield v. Johnson, 763 Fed.Appx. 106, 107 (2d Cir. 2019) (Summary Order) (citing Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). “A complaint may be dismissed under Rule 8 if it ‘is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'” Id. (quoting Simmons, 49 F.3d at 86 (2d Cir. 1995)).
Moreover, Rule 10 provides “[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). The Rule's purpose is “to provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins, No. 1:22-CV-1248 (MAD/DJS), 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (citation omitted), report and recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023).
A complaint that fails to comply with basic pleading requirements presents too heavy a burden for defendants to craft a defense, “provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims[,]” and may properly be dismissed. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). Therefore, dismissal of the instant complaint on this basis would also be appropriate. See, e.g., Griffith v. New York State, No. 5:23-CV-1266 (DNH/ML), 2024 WL 1641587, at *4 (N.D.N.Y. Mar. 20, 2024) (recommending “dismissal of the Complaint because it is not acceptable under Rules 8 and 10 of the Fed.R.Civ.P. and because Plaintiff's Section 1983 claim or claims against Defendant are entirely unclear.”), report and recommendation adopted, No. 5:23-CV-1266, 2024 WL 1639856 (N.D.N.Y. Apr. 16, 2024).
D. Leave to Amend
Although the Court has serious doubts, it is not clear whether Plaintiffs could assert a cognizable cause of action against the Defendants by way of a better pleading. Therefore, out of an abundance of caution and in deference to the Plaintiffs' pro se status, the undersigned recommends the action be dismissed without prejudice and with leave to amend. If Plaintiffs chose to avail themselves of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on which they rely to support any legal claims asserted, which Plaintiffs have a legal right to pursue, and over which this Court has jurisdiction. Of course, Plaintiffs may also pursue their claims in state court if appropriate.
VI. CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiffs' motions to proceed IFP (Dkt. Nos. 3, 4) are GRANTED,and it is further
Although their applications to proceed IFP have been granted, Plaintiffs will still be required to pay fees that they may incur in the future regarding this action, including, but not limited to, copying and/or witness fees.
RECOMMENDED that the complaint be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide to Plaintiffs a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are 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 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).
IT IS SO ORDERED.