Opinion
5:15-CV-00451 (DNH/TWD)
09-04-2015
CHARLES J. ANTHONY, SR., Plaintiff, v. HEATHER BROCKWAY, Defendant.
APPEARANCES: CHARLES J. ANTHONY, SR. Plaintiff pro se 8819 Gaskin Road Clay, New York 13041
APPEARANCES: CHARLES J. ANTHONY, SR.
Plaintiff pro se
8819 Gaskin Road
Clay, New York 13041
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has submitted Plaintiff's pro se second amended complaint, third application to proceed in forma pauperis ("IFP Application"), and a motion for appointment of counsel to the Court for review in this civil rights action brought pursuant to 42 U.S.C. § 1983. (Dkt. Nos. 12-14.) Plaintiff Charles J. Anthony presented his original pro se complaint for filing and IFP Application on April 15, 2015. (Dkt. Nos. 1 and 2.) Before the Court had acted upon Plaintiff's initial pro se complaint and IFP Application, Plaintiff presented an amended/supplemental complaint for filing and a second IFP Application, both of which were submitted to the Court for review by the Clerk. (Dkt. Nos. 5 and 6.) Even though Plaintiff's original complaint was superseded by his amended/supplemental complaint, because of his pro se status, the Court considered the allegations in both complaints in its initial review pursuant to 28 U.S.C. § 1915(e)(2)(B). (Dkt. No. 8.)
Upon initial review, the Court recommended, inter alia, that Plaintiff's amended/supplemental complaint be dismissed with leave to amend. (Dkt. No. 8 at 10.) The District Court accepted the recommendation and dismissed Plaintiff's amended/supplemental complaint with leave to amend his § 1983 claim. (Dkt. No. 9.)
I. PLAINTIFF'S THIRD IFP APPLICATION
A court may grant 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 third IFP application, the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's third IFP application (Dkt. No. 13) is granted.
II. LEGAL STANDARDS FOR INITIAL REVIEW
As explained in the Court's earlier Order and Report-Recommendation in this case (Dkt. No. 8), even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that "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)(B)(i)-(iii).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. 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) (citation omitted). "[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.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving 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). 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).
III. ANALYSIS
Plaintiff sued Defendant Heather Brockway ("Brockway"), an Onondaga County Sheriff's Deputy, under 42 U.S.C. § 1983, claiming that testimony she had given regarding service of process on Plaintiff in a state court foreclosure action was defamatory and had tended to expose him to "public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons and deprive him of their friendly interaction in society." (Dkt. No. 5 at 2.) The testimony at issue was that Plaintiff was "'Suicidal', 'mental', 'resists' and he 'kills cops.'" Id.
In its Order and Report-Recommendation, filed on April 28, 2015, the Court denied Plaintiff's first IFP Application (Dkt. No. 2) as moot and granted Plaintiff's second IFP Application (Dkt. No. 6) solely for the purpose of initial review. (Dkt. No. 8 at 9.) The Court concluded that Plaintiff had failed to state a claim under § 1983 and recommended dismissal with leave to amend. Id. The Court further recommended that the District Court decline to exercise supplemental jurisdiction over Plaintiff's state law defamation claim without prejudice and subject to refiling in state court and reconsideration by the District Court in the event Plaintiff submitted an amended complaint stating a claim. Id. at 9-10. In a May 27, 2015, Decision and Order, the Hon. David N. Hurd, United States District Judge, accepted the Report-Recommendation. (Dkt. No. 9.) Judge Hurd declined to exercise supplemental jurisdiction over the state law defamation claim without prejudice to reconsideration and granted plaintiff leave to amend to correct the deficiencies in his § 1983 claim that had been discussed in this Court's Order and Report-Recommendation. Id. at 2.
Plaintiff's second amended complaint (Dkt. No. 12), as with his amended/supplemental complaint, fails to state a claim under § 1983. As explained in the Court's Order and Report-Recommendation on initial review of Plaintiff's amended/supplemental complaint, defamation is generally an issue of state law, not federal constitutional law. Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010). Plaintiff was granted leave to amend his complaint because a defamation claim can be brought under § 1983 when the plaintiff can demonstrate "a stigmatizing statement plus a deprivation of a tangible interest." Gerrard v. Burns, No. 7:14-CV-1235, 2015 WL 1534416, at *3, 2015 U.S. Dist. LEXIS 44419, at * 8 (N.D.N.Y. April 6, 2015) (Hurd, D.J.) (quoting Vega, 596 F.3d at 81). The action is one for violation of a liberty or property interest protected by due process, Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004).
A copy of the unpublished decision will be provided to Plaintiff in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). --------
As explained to Plaintiff in the Court's initial Order and Report-Recommendation, "[t]o prevail on a 'stigma plus' claim, a plaintiff must show (1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights." Id. (internal quotation marks omitted). The state-imposed burden or alteration of status "must be in addition to the stigmatizing statement." Id. (citation and internal quotation marks omitted). A "'deleterious effect [flowing] directly from a sullied reputation,' standing alone, does not constitute a 'plus' under the 'stigma plus' doctrine." Sadallah, 383 F.3d at 38; Komlosi v. New York State Office of Mental Retardation and Developmental Disabilities, 64 F.3d 810, 817 (2d Cir. 1995) ("[T]he Supreme Court [has] recognized that . . . damage to reputation alone is insufficient to establish a claim for harm to a liberty interest. . . .").
In his second amended complaint, Plaintiff claims in wholly conclusory fashion that Brockway's statements concerning him swayed Judge Murphy to rule illegally against him in the foreclosure action. (Dkt. No. 12 at 2, 4.) To plead a cognizable claim, a complaint must allege enough facts "to state a claim that is plausible on its face." Twombly, 550 U.S. at 570. As explained above, for a claim to have facial plausibility, the plaintiff must plead factual content that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Even in a pro se case, "conclusory statements, do not suffice." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Plaintiff has not pleaded a single specific fact that supports his claim that Judge Murphy was swayed into ruling against him in the foreclosure action by Brockway's allegedly defamatory testimony.
The Court finds that Plaintiff has failed to state a plausible claim for violation of § 1983 with respect to Brockway's allegedly defamatory testimony. Plaintiff has already been given one opportunity to amend his complaint to state a claim under § 1983, and there is nothing in his second amended complaint suggesting that Plaintiff could do better given another opportunity. Therefore, the Court recommends that Plaintiff's second amended complaint (Dkt. No. 12) be dismissed with prejudice for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
IV. MOTION FOR APPOINTMENT OF COUNSEL
For the reasons set forth above, this Court has found that Plaintiff's second amended complaint does not state a claim, and has recommended that the amended pleading be dismissed with prejudice. Therefore, Plaintiff's motion for appointment of counsel (Dkt. No. 14) is denied.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's third IFP application (Dkt. No. 13) is GRANTED; and it is
RECOMMENDED that Plaintiff's second amended complaint (Dkt. No. 12) be DISMISSED WITH PREJUDICE; and it is
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 14) is DENIED; and it is further
ORDERED, that the Clerk provide Plaintiff with a copy of this Order and Report- Recommendation and with copy of the unpublished decision in Gerrard v. Burns, No. 7:14-CV-1235, 2015 WL 1534416 (N.D.N.Y. April 6, 2015) 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 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. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: September 4, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge