Opinion
6:23-CV-0086 (MAD/ML)
04-07-2023
TIRZA F. MING, Plaintiff, v. JULIA BROUILLETE, in official and personal capacity; and MINDY A. LAND, Defendants.
APPEARANCES OF COUNSEL TIRZA F. MING Plaintiff, Pro Se
APPEARANCES
OF COUNSEL
TIRZA F. MING
Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent a pro se complaint in the above captioned action together with an application to proceed in forma pauperis, filed by Tirza F. Ming (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 3.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application, and recommend that Plaintiff's Complaint be dismissed in its entirety (1) in part without leave to replead, and (2) in part with leave to replead. (Dkt. Nos. 1, 3.)
I. BACKGROUND
A. Procedural History
On January 23, 2023, Plaintiff filed a Complaint together with an application to proceed in forma pauperis and a motion for a temporary restraining order. (Dkt. Nos. 1, 2, 3.) On January 24, 2023, United States District Judge Mae A. D'Agostino denied Plaintiff's motion for a temporary restraining order because Plaintiff “failed to demonstrate a likelihood of success on the merits” and, in the alternative, “failed to demonstrate irreparable harm in the absence of the injunction.” (Dkt. No. 6 at 4.) Judge D'Agostino then referred this matter to the undersigned for a decision on Plaintiff's motion for leave to proceed in forma pauperis and an initial review of the Complaint. (Id.)
B. Summary of the Complaint
Construed as liberally as possible, Plaintiff's Complaint alleges that her rights were violated by defendants Julia Brouillete, an Oneida County Family Court Judge, and Mindy Land, an individual who lived with Plaintiff while she was a minor up until approximately January 18, 2023 (collectively “Defendants”). (See generally Dkt. No. 1.) The Complaint is extremely difficult to follow, however, it appears to stem from personal disputes between Plaintiff and Defendant Land, which, at various times, involved Defendant Brouillete, acting in her capacity as a family court judge. (Id.)
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)).
More specifically, the Complaint appears to allege that on January 18, 2023, Defendant Land called the police, made “false accusations and filed a temporary refrain from order” against Plaintiff and third-party Zaria Bartolomie, another individual who was living with Plaintiff and Defendant Land. (Dkt. No. 1 at 8.) Plaintiff alleges that Defendant Land removed Plaintiff's and Ms. Bartolomie's belongings from the residence and stole some of Plaintiff's and Ms. Bartolomie's belongings. (Id.) Plaintiff alleges that at some point in time, Plaintiff and Ms. Bartolomie each made an “affidavit of facts,” which they brought to the Oneida Family Court and presented to Defendant Brouillete. (Id.) Plaintiff alleges that Defendant Brouillete heard from Plaintiff and Defendant Land the same day, ignored Plaintiff's version of events, and ordered Plaintiff and Ms. Bartolomie to vacate their shared residence with Defendant Land within two hours. (Id.)
Under the causes of action heading in the Complaint, Plaintiff appears to assert causes of action pursuant to the following: (1) various provisions of the New York State Penal Law; (2) various federal criminal provisions including 18 U.S.C. §§ 241, 242, 245; (3) 28 U.S.C. § 518; (4) 42 U.S.C. § 3631; (5) 42 U.S.C. § 14141; (6) 28 U.S.C. §§ 351-364; and (7) 42 U.S.C. § 1983 and the First Amendment of the United States Constitution. (Dkt. No. 1.) As relief, Plaintiff seeks, inter alia compensatory and punitive damages. (Id. at 6.)
Plaintiff cites to N.Y. Pen. Law §§ 240.50, 240.36, 135.60, 155.05, 155.25, 210.45, 210.35, 120.15, 130.52, 175.35, 200.00, and 200.04.
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, 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 in forma pauperis application (Dkt. No. 3), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's 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 her application to proceed in forma pauperis has been granted, she is still required to pay fees that she 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 order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
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).
The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that all causes of action be dismissed.
A. Plaintiff's Claims Asserting Various New York State and Federal Criminal Provisions
Without elaboration, Plaintiff cites to several New York State Penal Law and federal criminal statutes in her Complaint: 18 U.S.C. §§ 241 (Conspiracy against Rights), 242 (Deprivation of Rights under Color of Law), 245 (Interference with Federally Protected Activities); and N.Y. Pen. Law §§ 240.50 (falsely reporting an incident in the third degree), 240.36 (loitering in the first degree), 135.60 (coercion in the third degree), 155.05 (larceny defined), 155.25 (petit larceny), 210.45 (making a punishable false written statement), 210.35 (making an apparently sworn false statement in the second degree), 120.15 (menacing in the third degree), 130.52 (forcible touching), 175.35 (offering a false instrument for filing in the first degree), 200.00 (bribery in the third degree), and 200.04 (bribery in the first degree). (See generally Dkt. No. 1.)
There is no private right of action to enforce state or federal criminal statutes. See generally Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); see also Walker v. CIBC Ltd., 20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13, 2021) (Hummel, M.J.) (“It appears plaintiff is either seeking the criminal prosecution of an individual or individuals or a law enforcement investigation, which is beyond this Court's jurisdiction.”), report-recommendation adopted by 2021 WL 3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (D'Agostino, J.) (holding that “there is no private right of action to enforce either state or federal criminal statutes.”).
As a result, I recommend dismissal of all of Plaintiff's claims that are premised on alleged violations of federal or state criminal laws. See Hall v. Sampson, 21-CV-4839, 2022 WL 2068248, at *2 n.2 (E.D. Pa. June 8, 2022) (collecting cases) (holding that the plaintiff cannot bring criminal charges against the defendants through a private lawsuit and that claims pursuant to, inter alia, 18 U.S.C. §§ 241, 371 do not give rise to a civil cause of action); Patterson v. Patterson, 16-CV-0844, 2019 WL 1284346, at *7 (W.D.N.Y. Mar. 20, 2019) (quoting Christian v. Town of Riga, 649 F.Supp.2d 84, 91 (W.D.N.Y. 2009)) (“Courts within this Circuit have accordingly held consistently that criminal charges under New York law ‘cannot be prosecuted by a private person.'”); Walthour v. Herron, 10-01495, 2010 WL 1877704, at *2 (E.D. Pa. May 6, 2010) (recognizing no private right of action under, inter alia, 18 U.S.C. §§ 241, 371).
B. Claim Pursuant to 28 U.S.C. § 518
To the extent that Plaintiff asserts a claim pursuant to 28 U.S.C. § 518, I recommend that it be dismissed. That statute provides that “[e]xcept when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits . . . in the United States Court of Federal Claims.” 28 U.S.C. § 518.
Plaintiff has not alleged any involvement of the United States nor does this statute appear to be applicable to Plaintiff's claims against Defendants. As a result, I recommend that any claim pursuant to 28 U.S.C. § 518 be dismissed for failure to state a claim upon which relief may be granted.
C. Claim Pursuant to 42 U.S.C. § 3631
To the extent that Plaintiff asserts a claim pursuant to 42 U.S.C. § 3631, I recommend that it be dismissed. 42 U.S.C. § 3631 is “a provision of the [Fair Housing Act] relating to criminal violations and penalties.” Byrd v. KTB Capital LLC, 16-CV-6017, 2019 WL 652529, at *4 (W.D.N.Y. Feb. 15, 2019). “There is no private right of action under 42 U.S.C. § 3631.” Cruz v. New York, 17-CV-0510, 2017 WL 6021838, at *13 n.12 (N.D.N.Y. Oct. 27, 2017) (Dancks, M.J.) (citing DeSouza v. Taiman, 16-CV-0490, 2017 WL 3444672, at *6 (D. Conn. Aug. 10, 2017) (collecting cases)), report and recommendation adopted by 2017 WL 6001833 (N.D.N.Y. Dec. 4, 2017) (Sannes, J.).
D. Claim Pursuant to 42 U.S.C. § 14141
Plaintiff appears to assert a claim against Defendants pursuant to 42 U.S.C. § 14141,which prohibits governmental employees from depriving persons of rights, privileges, or immunities secured or protected under the constitution. (See generally Dkt. No. 1.) However, that statute contains no private right of action. Cruz, 2017 WL 6021838, at *13 n.12 (citing Miller v. Carpinello, 06-CV-12940, 2007 WL 4207282, at *5 (S.D.N.Y. Nov. 20, 2007)); see Israel v. City of Syracuse, 21-CV-0915, 2021 WL 4777256, at *7 (N.D.N.Y. Sept. 16, 2021) (Lovric, M.J.) (recommending dismissal of the plaintiff's claim pursuant to 42 U.S.C. § 14141 because that provision contains to private right of action), report and recommendation adopted by, 2021 WL 4773232 (N.D.N.Y. Oct. 13, 2021) (Hurd, J.); Maretta-Brooks v. Hanuszczak, 18-CV-0426, 2018 WL 2021480, at *7 (N.D.N.Y. Apr. 26, 2018) (Peebles, M.J.) (citing 34 U.S.C. § 12601(b)) (“Under 34 U.S.C. § 12601, only the United States Attorney General has the authority to bring a civil action.”); see also Steinhardt v. Bernardsville Police Dep't, 20-2825, 2021 WL 3929321, at *2 n.2 (3d Cir. Sept. 2, 2021) (“[The plaintiff] also referenced . . . 34 U.S.C. § 12601, but [that] provision[] contain[s] no private right of action.”); Chappell v. Adams Cnty. Children's Servs., 22-CV-0747, 2023 WL 2568300, at *2 n.4 (S.D. Ohio Mar. 20, 2023) (“[t]here is no private right of action under this statute.”); Gumber v. Fagundes, 21-CV-3155, 2021 WL 3563065, at *2 (N.D. Cal. Aug. 11, 2021) (“[C]laims under . . . 34 U.S.C. § 12601 . . . must be dismissed because there is no private right of action.”). As a result, I recommend that this claim be dismissed.
Effective September 1, 2017, that section was recodified as 34 U.S.C. § 12601.
E. Claims Pursuant to 28 U.S.C. §§ 351-364
To the extent that Plaintiff attempts to assert claims pursuant to 28 U.S.C. §§ 351-364, I recommend that they be dismissed.
“The Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351-364 (“the Act”) .... authorizes complaints against United States Circuit, District, Bankruptcy, and Magistrate Judges who have ‘engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts' or who are ‘unable to discharge all the duties of office by reason of mental or physical disability.” Killingsworth v. Bringedahl, 21-CV-0337, 2023 WL 2486552, at *3 (M.D. La. Feb. 24, 2023). Pursuant to 28 U.S.C. § 351(a), any person seeking to assert a claim pursuant to the Act “may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.” 28 U.S.C. § 351(a). “Then, the chief judge of the circuit is tasked with reviewing the complaint and determining an appropriate course of action.” Fletcher v. Tymkovich, 786 Fed.Appx. 826, 828 (10th Cir. 2019) (citing 28 U.S.C. § 352). A complaint pursuant to the Act may be dismissed if it is “directly related to the merits of a decision or procedural ruling.” Killingsworth, 2023 WL 2486552, at *3 (citing 28 U.S.C. § 352(b)(1)(A)(ii)).
Here, to the extent that Plaintiff is seeking a review of actions that Defendant Brouillete took as an Oneida County Family Court Judge pursuant to 28 U.S.C. §§ 351-364, I recommend that those claims be dismissed. First, it is not alleged that Defendant Brouillete is a United States Circuit, District, Bankruptcy, or Magistrate Judge, and thus, her actions are not subject to review pursuant to 28 U.S.C. §§ 351-364. Second, this claim is not properly before the Court because, to the extent that a person seeks review pursuant to the Act, the proper procedure is to file the complaint with the clerk of the court of appeals for the circuit. 28 U.S.C. § 351(a); see Beitman v. Correct Care Solutions, 22-15716, 2023 WL 2552333, at *1 n.7 (9th Cir. Mar. 17, 2023) (declining to consider any complaint that the plaintiff “may have attempted to lodge against Judge Teilborg pursuant to 28 U.S.C. § 351(a): it was not properly before the district court and is not before us now.”). Third, it appears that Plaintiff is merely seeking a review of what she perceives to be incorrect judicial decisions by Defendant Brouillete, which is not permissible under the Act. 28 U.S.C. § 352(b)(1)(A)(ii). For each of these reasons, I recommend that Plaintiff's claims pursuant to 28 U.S.C. § 351-364 be dismissed for failure to state a claim upon which relief may be granted.
F. Claim Pursuant to 42 U.S.C. § 1983 and the First Amendment
A claim for relief under 42 U.S.C. § 1983 must allege facts showing that the defendant acted under color of state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Thus, to state a claim under § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
1. Claim Against Defendant Land
Generally, private parties are not state actors, and are not liable under § 1983. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties ....”) (internal quotation marks and citations omitted). “Because 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.'” United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 941 F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum v. Yartsky, 457 U.S. 991, 1002 (1982)). A private defendant may be held liable only as “a willing participant in joint activity with the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) (quoting United States v. Price, 383 U.S. 787, 794 (1966)). Claims under § 1983 can be brought against private entities by “showing that a person acting under color of state law . . . collaborated with a private person . . . to deprive the plaintiff of a constitutional right.” Fries v. Barns, 618 F.2d 988, 990 (2d Cir. 1980) (citing Adickes, 398 U.S. at 144).
However, “mere use, and even misuse, of state courts does not turn private parties into state actors.” Koziol v. King, 14-CV-0946, 2015 WL 2453481, at *11 (N.D.N.Y. May 22, 2015) (Sharpe, C.J.) (citing Cramer v. Englert, 93 Fed.Appx. 263, 264 (2d Cir. 2004) (“[T]he mere invocation of New York legal procedures does not satisfy the state actor requirement under § 1983.”); Dahlberg v. Becker, 748 F.2d 85, 89-90 (2d Cir. 1984) (dismissing § 1983 action because allegations of “misuse of a state statute” did not give rise to § 1983 action)).
Here, the Complaint fails to allege facts plausibly suggesting that Defendant Land, who rented Plaintiff a room for a period of time, was a state actor for purposes of liability pursuant to 42 U.S.C. § 1983. See Miller Ex v. Primo, 22-CV-0680, 2022 WL 16556060, at *7 (N.D.N.Y. Sept. 29, 2022) (Lovric, M.J.) (recommending dismissal of the plaintiff's claims against the defendant mother of his child because her alleged misuse of the state court system did not turn her into a state actor), report and recommendation adopted by 2022 WL 16551700 (N.D.N.Y. Oct. 31, 2022) (Sannes, C.J.); Koziol, 2015 WL 2453481, at *11-12 (dismissing the plaintiff's claims against his ex-wife based on the plaintiff's allegations that she “abuse[d] joint custody rights” and filed “false claims” and “specious petitions”). As a result, I recommend that Plaintiff's claim pursuant to 42 U.S.C. § 1983 against Defendant Land be dismissed for failure to state a claim upon which relief may be granted.
2. Claims Against Defendant Brouillete
Plaintiff's claims under § 1983 against Defendant Brouilete, who acted as the state family court judge, are barred under the doctrine of judicial immunity. Under this doctrine, judges are absolutely immune from suit for claims for damages for any actions taken within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Generally, “acts arising out of, or related to, individual cases before [a] judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209. This is because “[w]ithout insulation from liability, judges would be subject to harassment and intimidation.” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). Further, as amended in 1996, § 1983 provides that “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983.
Judicial immunity does not apply when a judge takes action outside his or her judicial capacity, or when a judge takes action that, although judicial in nature, is taken “in the complete absence of all jurisdiction.” Mireles 502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10 (describing actions that are judicial in nature). However, “the scope of [a] judge's jurisdiction must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).
Plaintiff asserts claims arising from the efforts of Defendant Brouillete, in her capacity as a New York Family Court Judge, to resolve issues between Plaintiff and Defendant Land. Defendant Brouillete is therefore immune from suit under the doctrine of judicial immunity.
As a result, I recommend that Plaintiff's claims against Defendant Brouillete pursuant to 42 U.S.C. § 1983, be dismissed under the doctrine of judicial immunity. See 28 U.S.C. § 1915(e)(2)(b).
Moreover, to the extent that Plaintiff is seeking an order enjoining conduct that is the subject of an ongoing state court proceeding, I recommend that it be dismissed based on the doctrine of Younger abstention. Younger v. Harris, 401 U.S. 37 (1971). “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.” Morpurgo v. Incorp. Vill. of Sag Harbor, 327 Fed.Appx. 284, 285 (2d Cir. 2009) (citation omitted). In addition, and in the alternative, the Anti-Injunction Act, 28 U.S.C. § 2283 bars federal courts from enjoining ongoing state court proceedings, and thus, I recommend that any request by Plaintiff for such relief be dismissed.
V. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead 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 replead 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.
Here, I find that leave to replead would be futile with respect to Plaintiff's claims pursuant to: (1) New York State and federal criminal provisions (including 18 U.S.C. §§ 241242, 245, and N.Y. Pen. Law §§ 240.50, 240.36, 135.60, 155.05, 155.25, 210.45, 210.35, 120.15, 130.52, 175.35, 200.00, and 200.04); (2) 28 U.S.C. §§ 518, 351-364; (3) 42 U.S.C. §§ 3631, 14141, and (4) 42 U.S.C. § 1983 and the First Amendment of the United States Constitution against Defendant Brouillete, because the issues with those claims are substantive such that a better pleading will not cure them. See Maretta-Brooks v. Comm'r of Soc. Sec., 22-CV-1261, 2023 WL 2655195, at *6 (N.D.N.Y. Mar. 27, 2023) (Lovric, M.J.) (recommending dismissal without leave to replead the plaintiff's claims alleging violations of criminal statutes “because the problem with those claims is substantive such that a better pleading will not cure it”); Maretta-Brooks v. Hanuszczak, 2018 WL 2921480 (recommending dismissal without leave to amend the plaintiff's claims pursuant to 34 U.S.C. § 12601); Cruz, 2017 WL 6021838, at *23 (recommending dismissal with prejudice the plaintiff's claims pursuant to 42 U.S.C. §§ 3631, 14141); McFadden v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *5 (N.D.N.Y. Apr. 26, 2013) (D'Agostino, J.) (dismissing without leave to amend the plaintiff's claims seeking to enforce New York State criminal statutes); Gonzalez v. Sharpe, 06-CV-1023, 2006 WL 2591065, at *3 (N.D.N.Y. Sept. 8, 2006) (Scullin, J.) (dismissing without leave to amend claims that were barred based on doctrine of judicial immunity).
Although I have serious doubts about whether Plaintiff can replead to assert an actionable claim pursuant to 42 U.S.C. § 1983 and the First Amendment of the United States Constitution against Defendant Land, given that this is Plaintiff's initial complaint, out of an abundance of caution, I recommend that she be permitted to replead her Complaint with respect to that claim.
If Plaintiff chooses to file an amended complaint, she 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.”).
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 3) is GRANTED only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to the extent that it asserts claims pursuant to: (1) New York State and federal criminal provisions; (2) 28 U.S.C. §§ 518, 351-364; (3) 42 U.S.C. §§ 3631, 14141, and (4) 42 U.S.C. § 1983 and the First Amendment of the United States Constitution against Defendant Brouillete; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to the extent that it asserts claims pursuant to 42 U.S.C. § 1983 and the First Amendment of the United States Constitution against Defendant Land, 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).