Opinion
6:22-cv-1082 (GTS/TWD)
11-09-2022
FRANCIS HELMER, formerly FRANCIS MENARD, Plaintiff, v. CAPITAL ONE, CAMILLE, Defendant.
FRANCIS HELMER Plaintiff, pro se
FRANCIS HELMER Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
The Clerk sent a pro se Complaint and an application to proceed in forma pauperis (“IFP Application”) filed by Francis Helmer (“Plaintiff”) to the undersigned for review. (See Dkt. Nos. 1-2.) Having reviewed Plaintiff's IFP Application, the undersigned GRANTS the application for purposes of this review. (See Dkt. No. 2.) The undersigned now considers the sufficiency of the allegations set forth in the Complaint under 28 U.S.C. § 1915(e)(2). For the reasons discussed below, the undersigned recommends that the Court DISMISS Plaintiff's Complaint for failure to state a claim with leave to amend. (Dkt. No. 1; see also 28 U.S.C. § 1915(e)(2)(B)(ii).)
The following recitation of facts is drawn from the Complaint, which the Court accepts as true for purposes of initial review. See, e.g., LaTouche v. Rockland County, No. 22-CV-1437 (LTS), 2022 WL 953111, at *1 (S.D.N.Y. Mar. 29, 2022); Walker v. City of New York, No. 20-CV-5240 (PKC) (LB), 2021 WL 1838277, at *1 n.1 (E.D.N.Y. May 7, 2021).
Plaintiff initiated this action against Capital One and one of its Fraud Investigators, Camille (collectively, “Defendants”) on October 20, 2022. (See Dkt. No. 1.) Plaintiff claims Capital One allowed his ex-wife to “fraudulently get two credit cards in [his] name” in 2016. See id. at 2. Plaintiff reported the fraud to Capital One, and Capital One subsequently “found that the two credit cards were ordered under identity theft.” See id. Plaintiff tried to get the credit card numbers from Camille so he could file criminal charges against his ex-wife, but she refused to share the numbers with him. See id. at 2-3. These events have caused Plaintiff “high stress.” See id. at 3.
Based on this series of events, Plaintiff advances three causes of action against Defendants. See id. at 4. Through the first, he sues both Defendants for $35,000,000. See Id. Through the second, he sues both Defendants for obstruction of justice. See id. Through the third, he sues Capital One for identity theft. See id.
Plaintiff claims this Court has jurisdiction pursuant to 28 U.S.C. § 1343. (See Dkt. No. 1 at 1.) The undersigned accordingly construes the second cause of action as an obstruction of justice claim asserted under the second part of 42 U.S.C. § 1985(2). See generally 28 U.S.C. § 1343(a)(1) (providing district courts with jurisdiction over civil actions brought pursuant to 42 U.S.C. § 1985); Kush v. Rutledge, 460 U.S. 719, 725 (1983) (“The second part of § 1985(2) applies to conspiracies to obstruct the course of justice in state courts”).
II. STANDARD OF REVIEW
This Court must conduct an initial review of complaints filed in forma pauperis. 28 U.S.C. § 1915(e)(2)(B). When conducting this review, “the court shall dismiss the case at any time if the court determines . . . the action . . . is frivolous or malicious . . . [or] fails to state a claim on which relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021). The Court must accordingly construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
“An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
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.” 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). 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; 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). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
III. SUFFICIENCY OF THE COMPLAINT
Plaintiff's Complaint fails to state a claim. (See generally Dkt. No. 1.) The undersigned accordingly recommends that the Court dismiss Plaintiff's Complaint in its entirety for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff's first cause of action-an unadorned claim for $35,000,000-is not a legal cause of action; it is a prayer for relief. (See Dkt. No. 1 at 4; see, e.g., Antech Diagnostics, Inc. v. Veterinary Oncology & Hematology Ctr., LLC, No. 3:16-CV-481 (AWT), 2019 WL 10351654, at *6 (D. Conn. Mar. 5, 2019) (“This claim is being dismissed without prejudice because it is a prayer for relief, not a substantive cause of action”).) Through this cause of action, Plaintiff has failed to adequately set forth sufficient factual content to allow this Court to reasonably infer that any of the Defendants are liable for $35,000,000. See Iqbal, 556 U.S. at 678. He has failed to set forth a short and plain statement stating who did what to him, when they did it, and how he was injured. See id.; see also Fed.R.Civ.P. 8(a)(2). Absent these basic details, Plaintiff's first cause of action does not give Defendants fair notice of what his legal cause of action is and the grounds upon which it rests. See Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2). Accepting the allegations advanced in support of Plaintiff's first cause of action as true and construing all reasonable inferences in his favor, Hernandez, 18 F.3d at136, the Court is left with “an unadorned, the-defendant-harmed-me accusation.” See Iqbal, 556 U.S. at 678. The undersigned accordingly recommends that the Court dismiss Plaintiff's first cause of action for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); see, e.g., Antech Diagnostics, Inc., 2019 WL 10351654, at *6.
Plaintiff's second cause of action, an obstruction of justice claim asserted under the second part of 42 U.S.C. § 1985(2), is inadequately pled. (See Dkt. No. 1 at 1, 3-4.) The second part of Section 1985(2) proscribes conspiracies “for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.” See 42 U.S.C. § 1985(2); see also Srubar v. Rudd, Rosenberg, Mitofsky & Hollender, 875 F.Supp. 155, 162 (S.D.N.Y. 1994), aff'd, 71 F.3d 406 (2d Cir. 1995). To state a claim under this provision, Plaintiff must “allege that he was a member of a protected class, that the defendants conspired to deprive him of his constitutional rights, that the defendants acted with class-based, invidiously discriminatory animus, and that he suffered damages as a result of the defendants' actions.” Gleason v. McBride, 869 F.2d 688, 694-95 (2d Cir. 1989); see also Nachmenson v. Gluck, No. 22-CV-627 (PKC), 2022 WL 1093220, at *3 (E.D.N.Y. Apr. 12, 2022); Murphy v. Onondaga Cnty., No. 5:18-CV-1218 (GLS) (CFH), 2022 WL 819281, at *12 (N.D.N.Y. Mar. 18, 2022); Saunders v. Vinton, No. 3:12-CV-581 (MPS), 2013 WL 1729264, at *7 (D. Conn. Apr. 22, 2013), aff'd, 554 Fed.Appx. 36 (2d Cir. 2014). “[T]he intended victims of discrimination must be victims not because of any personal malice the conspirators have toward them, but because of their membership in or affiliation with a particular class.” Gleason, 869 F.2d at 695; see also Nachmenson, 2022 WL 1093220, at *3.
Here, Plaintiff failed to adequately plead his obstruction of justice claim under the second part of Section 1985(2) because he has not alleged that he is a member of a protected class, that Defendants engaged in a conspiracy, or that they acted with discriminatory animus. (Compare Dkt. No. 1, with 42 U.S.C. § 1985(2); see generally Gleason, 869 F.2d at 695.) The undersigned accordingly recommends that the Court dismiss Plaintiff's second cause of action for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); see, e.g., Brady v. Friedlander, No. 20-3515-CV, 2021 WL 5872264, at *2 (2d Cir. Dec. 13, 2021) (upholding the dismissal of a claim asserted under the second part of Section 1985(2) because the claimant “failed to allege that any of the Defendants-Appellees acted with invidiously discriminating animus”); Gleason, 869 F.2d at 695 (upholding the dismissal of a claim asserted under the second part of Section 1985(2) because the claimant “did not meet his burden of showing that he is a member of a protected group”); Nachmenson, 2022 WL 1093220, at *3 (dismissing a claim asserted under the second part of Section 1985(2) because the claimant failed to allege “he was discriminated against due to his membership in a protected class and that Defendant Gluck and the State Defendants conspired to violate his civil rights motivated by anti-Semitic animus”); Murphy, 2022 WL 819281, at *12 (“Because Murphy makes no attempt to demonstrate racial or other class-based animus on behalf of any defendant, he has failed to adequately plead a claim under the second clause of § 1985(2), and, thus, his fifth cause of action is dismissed as against all defendants.”); Srubar, 875 F.Supp. at 162 (dismissing a claim asserted under the second part of Section 1985(2) because the claimant failed to allege “the existence of a conspiracy, or that such conspiracy was invidiously motivated.”).
Finally, Plaintiff's identity theft claim, seemingly asserted under 18 U.S.C. § 1028, “is purely criminal in nature and creates no private right of action.” Hernandez v. Doe, No. 16-CV-2375 (KAM) (LB), 2016 WL 4995231, at *2 (E.D.N.Y. Sept. 18, 2016); see also Clark v. Student Loan Fin. Corp., No. 18-CV-9354 (JPO), 2019 WL 4412571, at *2 (S.D.N.Y. Sept. 16, 2019); Cabrera v. U.S. Dep't Educ., No. 6:18-CV-06476 (MAT), 2018 WL 11449477, at *2 (W.D.N.Y. July 5, 2018); Garay v. U.S. Bancorp, 303 F.Supp.2d 299, 302-303 (E.D.N.Y. 2004). “There is no private federal cause of action for identity theft.” Cabrera, 2018 WL 11449477, at *2; see also Akram v. Akram, No. CV-22-02699 (KM) (JRA), 2022 WL 2473439, at *2 (D.N.J. July 6, 2022); Abdul-Sabur v. Wells Fargo Bank, N.A., No. 7:19-CV-674, 2020 WL 1670193, at *2 (W.D. Va. Feb. 10, 2020), report and recommendation adopted, 2020 WL 1665313 (W.D. Va. Apr. 3, 2020); Blackstock v. Walgreens, No. 4:17-CV-02097 (RBH) (KDW), 2017 WL 4174767, at *2 (D.S.C. Sept. 1, 2017), report and recommendation adopted, 2017 WL 4156445 (D.S.C. Sept. 19, 2017). The undersigned accordingly recommends that the Court dismiss Plaintiff's third cause of action for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); see, e.g., Hernandez, 2016 WL 4995231, at *2-3 (dismissing the claimant's Section 1028 identity theft claim for lack of subject matter jurisdiction and failure to state a claim).
In sum, Plaintiff's first cause of action fails to state a cognizable claim, he failed to adequately plead his second cause of action for obstruction of justice, and his third cause of action is not cognizable as a private right of action under the Constitution, laws, or treaties of the United States. (See generally Dkt. No. 1.) The undersigned accordingly recommends that the Court dismiss Plaintiff's Complaint in its entirety for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). Out of an abundance of caution and solicitude for Plaintiff's pro se status, the undersigned further recommends that the Court grant Plaintiff leave to amend.
IV. CONCLUSION
For the foregoing reasons, the undersigned recommends that the Court dismiss Plaintiff's Complaint with leave to amend. (Dkt. No. 1.)
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED solely for purposes of initial review; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
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 . 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) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).