Opinion
3:24-CV-0268 (MAD/ML)
07-03-2024
THOMAS C. WILLIAMS, Director of Constituents, Plaintiff, v. BINGHAMTON CITY POLICE, Defendant.
APPEARANCES: OF COUNSEL: THOMAS C. WILLIAMS Plaintiff, Pro Se
APPEARANCES: OF COUNSEL:
THOMAS C. WILLIAMS
Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent a complaint in the above captioned action together with an amended application to proceed in forma pauperis and motion to appoint counsel, filed by Thomas C. Williams (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 3, 10.) For the reasons discussed below, I (1) grant Plaintiff's amended in forma pauperis application (Dkt. No. 10), (2) deny Plaintiff's motion for appointment of counsel (Dkt. No. 3), and (3) recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed with leave to amend.
I. INTRODUCTION
Construed as liberally as possible, Plaintiff's Complaint alleges that his rights were violated by Defendant Binghamton City Police (“Defendant”). (See generally Dkt. No. 1.)
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 Complaint is largely non-sensical and Plaintiff's handwriting makes it even more difficult to decipher. (Id.) As best as the undersigned can deduce, the Complaint appears to allege that Defendant did not accept Plaintiff's “registration,” which Plaintiff understands to be a violation of his civil rights. (Id.) The Complaint is on form complaints alleging violations of 42 U.S.C. § 1983, the Americans with Disabilities Act, and Title VII of the Civil Rights Act, as Amended. (See generally Dkt. No. 1.)
As relief, Plaintiff seeks to “recover registration of Binghamton ‘Police' right-of-way” (Dkt. No. 1 at 9), and “that the police chief allows the sheriff's department to have a expectance to sponsor me for permit to carry for right-of-way within NY state of registration privalage and of requested” (id. at 13 [errors in original]).
II. PLAINTIFF'S AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS
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 permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's amended in forma pauperis application (Dkt. No. 10) the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's amended application to proceed in forma pauperis is granted.
The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis 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 in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Plaintiff is reminded that, although his application to proceed in forma pauperis has been granted, he is still required to pay fees that he may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, 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).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous).
Rule 8 of the Fed.R.Civ.P. requires a “short and plain statement” of a claim, showing that “the pleader is entitled to relief.” Whitfield v. Johnson, 763 Fed.Appx. 106, 107 (2d Cir. 2019) (quoting Fed.R.Civ.P. 8(a)). Each statement must be “simple, concise, and direct,' and must give ‘fair notice of the claims asserted.” Whitfield, 763 Fed.Appx. at 107 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). A pleading must also contain “a demand for the relief sought[.]” Id. “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 of the Fed.R.Civ.P. 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, 22-CV-1248, 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (Stewart, M.J.) (citation omitted), report and recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023) (D'Agostino, J.). 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) (McAvoy, C.J.).
“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.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
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 it be dismissed for two reasons.
First, as it currently stands, Plaintiff's Complaint wholly fails to provide fair notice of the claims he attempts to assert. The “facts” portion of the form complaint pursuant to 42 U.S.C. § 1983 is blank and the causes of action state:
FIRST CAUSE OF ACTION
no search warrant
SECOND CAUSE OF ACTION
no arrest warrant
THIRD CAUSE OF ACITON
out of geographical zone(Dkt. No. 1 at 2-3.)
The facts portion of the form complaint pursuant to Title VII states:
1. My registration is noticed by the United States Government as a asset
2. My impingement is a registration with
3. Full annuity
4. My offer to the police of Binghamton is protected my rights by law of the “Police Act”(Dkt. No. 1 at 7 [errors in original].) The causes of action portion of the Title VII form complaint state:
FIRST CAUSE OF ACTION
1. service to safe save service to save and protect
2. offer registration a safe resolution for the community by the people for the people and them that service this nation
3. resolve remain retate secure and proceed to continue
SECOND CAUSE OF ACTION
1. relocate police headcorters within 13901 zip code for resolution of respect for regional Department of justice.
while reserving registration of police family and show respect to resolution and registration
THIRD CAUSE OF ACTION
1. supply gym
2. shower and changing room
3. supply safe room offices with sleeping corders a future floor plan for my headcorders as well for my registration(Dkt. No. 1 at 8 [errors in original].)
Given its lack of clarity, the undersigned recommends dismissal of the Complaint because it is not acceptable under Rules 8 and 10 of the Fed.R.Civ.P. and because Plaintiff's claim or claims against Defendant are entirely unclear.
Second, in the alternative, I recommend that the Complaint be dismissed for failure to state a claim upon which relief may be granted.
To the extent that the Complaint is construed as asserting claims pursuant to 42 U.S.C. § 1983 against Defendant, it fails to allege facts plausibly suggesting that Defendant violated any of Plaintiff's federal rights. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (holding that section 1983 “is not itself a source of substantive rights,” but is a vehicle for vindicating federal rights embedded in the United States Constitution and federal statutes); see also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (holding that section 1983 “merely provides a method for vindicating federal rights elsewhere conferred, such as those conferred by § 1981.”).
To the extent that the Complaint is construed as asserting claims pursuant to the ADA against Defendant, it fails to allege facts plausibly suggesting that Plaintiff is an individual with a disability. 42 U.S.C. § 12102(1) (defining “disability” to mean “a physical or mental impairment that substantially limits one or more major life activities of [an] individual . . . record of such impairment; or . . . being regarded as having such an impairment.”).
Moreover, Plaintiff could not proceed with a claim under Title I of the ADA, which addresses employment discrimination, because he has not alleged that he was employed by Defendant. 42 U.S.C. § 12117; see Mary Jo C. v. New York State and Local Retirement Sys., 707 F.3d 144, 169 (2d Cir. 2013) (“Title I of the ADA expressly deals with th[e] subject of employment discrimination ....”) (citation and internal quotation marks omitted). “Title II of the ADA proscribes discrimination against the disabled in access to public services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009). Plaintiff has failed to sufficiently plead that Defendant “denied [him] the opportunity to participate in or benefit from public services, programs, or activities, or has otherwise discriminated against him, by reason of his disability rather than a legitimate nondiscriminatory reason.” Tsuma v. Costello, 22-CV-0067, 2022 WL 1036819, at *8 (D. Conn. Apr. 6, 2022). More specifically, Plaintiff has not alleged facts plausibly suggesting that Defendant discriminated against him on the basis of his disability. See Franks v. Eckert, 18-CV-0589, 2020 WL 4194137, at *4 (W.D.N.Y. July 21, 2020) (“Although [the p]laintiff has alleged he was denied some of his requested reasonable accommodations, there are no facts in the Amended Complaint to suggest that [the d]efendants refused to allow [the p]laintiff to participate in any program or activity because of his disability”); see also Rosado v. Herard, 12-CV-8943, 2014 WL 1303513, at *6 (S.D.N.Y. Mar. 25, 2014) (dismissing ADA claims where the plaintiff failed to “plead[ ] facts demonstrating that he was denied access to therapeutic group sessions because of a disability”). Further, Title III of the ADA is “not applicable to public entities” and thus, is inapplicable here where Defendant is a public entity. Morales v. New York, 22 F.Supp.3d 256, 266-67 (S.D.N.Y. 2014) (citing cases). In addition, Title IV of the ADA does not appear to be applicable to Plaintiff's claims because Title IV prohibits disability discrimination in telecommunications. See Genco v. Sargent & Collins LLP, No. 18-CV-0107, 2018 WL 3827742, at *3, n.5 (W.D.N.Y. June 4, 2018). Lastly, Title V of the ADA, sometimes referred to as the “retaliation provision,” also does not appear applicable because Plaintiff does not allege that he engaged in activity protected by the ADA, that Defendant was aware of that activity, or any causal connection between the allegedly adverse actions that Defendant took against him and the protected activity. See Chiesa v. New York State Dep't of Labor, 638 F.Supp.2d 316, 323 (N.D.N.Y. 2009) (Hurd, J.).
To the extent that the Complaint is construed as asserting a claim pursuant to Title VII of the Civil Rights Act, as amended, it fails to allege facts plausibly suggesting an employee/employer relationship between Plaintiff and Defendant. See Jones v. Thomas, 20-CV-5581, 2020 WL 5077026, at *4 (S.D.N.Y. Aug. 27, 2020) (dismissing for failure to state a claim, the plaintiff's claims pursuant to Title VII where the plaintiff did not allege that he is or was an employee of any of the defendants); Basora-Jacobs v. Palevsky, 20-CV-1675, 2020 WL 3868710, at *2 (E.D.N.Y. July 10, 2020) (dismissing the plaintiff's Title VII claims because “[t]he complaint does not list Plaintiff's employer as a defendant in the case caption.”). Moreover, the Complaint fails to allege facts plausibly suggesting that Plaintiff filed a timely charge with the EEOC and received an EEOC right-to-sue letter before commencing this action. 42 U.S.C. § 2000e-5(e), (f); see Legnani v. Alitalia v. Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (“Under . . . Title VII . . ., a claimant may bring suit in federal court only if she has filed a timely complaint with the EEOC and obtained a right-to-sue letter.”).
As a result, to the extent that the Complaint is construed as asserting claims pursuant to 42 U.S.C. § 1983, the ADA, and/or Title VII, I recommend that those claims be dismissed.
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.
Given that this is the Court's first review of Plaintiff's pleading and that Plaintiff is a pro se litigant, out of an abundance of caution, I recommend that he be permitted to replead the Complaint.
If Plaintiff chooses to file an amended complaint, he should note that the law in this circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'” Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any such 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.”).
VI. MOTION TO APPOINT COUNSEL
Plaintiff also submitted a request for appointment of counsel. (Dkt. No. 3.) As an initial matter, “[a] party has no constitutionally guaranteed right to the assistance of counsel in a civil case.” Lefridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011) (citation omitted). Furthermore, there is no bright-line test determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-393 (2d Cir. 1997). Rather, the court must carefully consider a number of factors, including whether the indigent's claims seem likely to be of substance. See Leftridge, 640 F.3d at 69 (stating that “[t]he court properly denies the plaintiff's motion for counsel if it concludes that his chances of success are highly dubious.”) (citations omitted).
Because I have recommended dismissal of the instant matter, it cannot be said that Plaintiff's claims are likely to be of substance; therefore, the motion (Dkt. No. 3) must be denied.
ACCORDINGLY, it is
ORDERED that Plaintiff's amended application to proceed in forma pauperis (Dkt. No. 10) is GRANTED; and it is further
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 3) is DENIED; and it is further respectfully
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO REPLEAD as frivolous (or, in the alternative, for failure to state a claim upon which relief may be granted) pursuant to 28 U.S.C. § 1915(e)(2)(B); 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 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).