Opinion
6:23-cv-1438 (BKS/TWD)
08-29-2024
NORMAN CRONEY, Plaintiff, v. LUIS DEJOY, Defendant.
APPEARANCES: NORMAN CRONEY Plaintiff, pro se OF COUNSEL:
APPEARANCES: NORMAN CRONEY Plaintiff, pro se
OF COUNSEL:
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On November 17, 2023, pro se plaintiff Norman Croney (“Plaintiff”) filed a complaint alleging United States Postal Service Postmaster General Luis DeJoy (“Defendant”) violated his civil rights, Dkt. No. 1, along with a motion to proceed in forma pauperis (“IFP”), Dkt. No. 5. By Report-Recommendation and Order dated January 30, 2024, the undersigned granted Plaintiff's motion to proceed IFP and recommended his official capacity claims against DeJoy be dismissed and individual capacity claims against DeJoy be dismissed with leave to amend. Dkt. No. 8 at 8.
Citations to Plaintiff's 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.
Plaintiff submitted an amended complaint on February 12, 2024. Dkt. No. 9. By Text Order dated July 11, 2024, the matter was reassigned to Hon. Brenda K. Sannes, Chief United States District Judge. Dkt. No. 12. Judge Sannes denied the Report-Recommendation and Order as moot and recommitted the matter to the undersigned for a review of the allegations contained in Plaintiff's amended complaint. Dkt. No. 13 at 2.
The factual allegations in Plaintiff's amended complaint are nearly identical to those contained in the original compliant. Compare Dkt. No. 1 with Dkt. No. 9.
Plaintiff claims, on November 3, 2022, while he was incarcerated at Five Points Correctional Facility, he sent a letter to the Federal Bureau of Investigations (“FBI”) via certified mail. Dkt. No. 9 at 2. He also “wrote the F.B.I. Dozens of times regular mail,” but did not receive a response. Id. Therefore, Plaintiff sent a second letter to the FBI by certified mail on September 1, 2023, from Marcy Correctional Facility, but again received no return receipt. Id.
Plaintiff avers “[d]ue to the fact that I sent the (F.B.I.) (2) two certified mail return receipts” from “two diffrent facilitys, and both times got the receipt saying it left the facility, but didn't receive the Hardcopy return receipt signature conformation in which I payed for, Then Luis DeJoy is responsible for violating My 1st at 4th Amendment.” Id. at 2-3. He further argues DeJoy is “responsible for violating the Sarbanes-Oxley Act” and “committing mail fraud ....” Id. at 3. He contends “DeJoy acted under color of federal law when he directed his employees to engage in fraudulent actions that was the cause of my certified mail return receipt signature conformation Being intercepted and not making it to the destination I payed for it to go to.” Id.
Plaintiff identified Bivens as the legal basis for his complaint, and seeks to hold Defendant DeJoy liable in both his individual and official capacities. See id. at 1. He requests “punitive and or monettary compensation for the violation of my 1st and 4th Amendments right in the Amount of 500,000$.” Id. at 3.
See generally, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
III. STANDARD OF REVIEW
The Court shall dismiss a complaint in a civil action if the Court determines it is frivolous, malicious, fails to state a claim on 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), 1915A(b)(1)-(2); see also, 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) (emphasis in original, internal quotation marks and citation omitted).
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). “[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.
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).
IV. DISCUSSION
Plaintiff purports to assert claims against Defendant DeJoy, in both his individual and official capacities, pursuant to Bivens, for the violation of Plaintiff's First and Fourth Amendment rights. See Dkt. No. 9 at 5. “In Bivens . . ., the Supreme Court recognized an implied private cause of action for damages against federal officers who violate a citizen's constitutional rights.” Feldman v. Lyons, 852 F.Supp.2d 274, 278 (N.D.N.Y. 2012) (citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-67 (2001)); see also Iqbal, 556 U.S. 662, 675-76 (2009) (“In the limited settings where Bivens does apply, the implied cause of action is the federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.”) (internal quotations and citations omitted). Even assuming, arguendo, Plaintiff has an implied cause of action under Bivens for his First and Fourth Amendment claims, his amended complaint fails to state a claim upon which relief may be granted.
“[V]icarious liability is inapplicable to Bivens and § 1983 suits, [therefore,] a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020). Here, Plaintiff's sole factual allegation against DeJoy is that the Defendant “dirrected his employees to engage in fraudulent actions” which caused Plaintiff's “certified mail return receipt signature conformation Being intercepted and not making it to the destination ....” Dkt. No. 9 at 3. Yet, the complaint lacks any factual support for the Defendant's alleged wrongdoing, beyond Plaintiff's speculation that DeJoy “dirrected his employees to engage in fraudulent actions ....” Id.
In sum, Plaintiff's sole assertion about the Defendant is speculative and unsupported by any factual enhancement. Therefore, the undersigned recommends dismissal of Plaintiff's amended complaint under § 1915A(b)(1). See, e.g., Blount v. Cnty. of Onondaga, No. 5:20-CV-0937 (GTS/TWD), 2020 WL 9264843, at *8 (N.D.N.Y. Oct. 19, 2020) (recommending dismissal pursuant to §§ 1915(e)(2)(B) and 1915A(b), explaining, the plaintiff's “allegations are conclusory and unsupported by any factual enhancement and, therefore, fail to satisfy the governing pleading requirements under Rule 8 and Iqbal.”), report and recommendation adopted, 2021 WL 958456 (N.D.N.Y. Mar. 15, 2021); Guarnieri v. Kelley, No. 3:19-CV-0318 (GLS/DEP), 2019 WL 1486688, at *4 (N.D.N.Y. Apr. 4, 2019) (“plaintiff's allegations with respect to [the] defendant . . . are conclusory and unsupported by any factual enhancement, and therefore fail to satisfy the governing pleading requirements under Rule 8 and Iqbal.”), report and recommendation adopted, 2019 WL 5596468 (N.D.N.Y. Oct. 30, 2019); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'”) (citing Twombly, 550 U.S. at 557) (emphasis added, additional quotations omitted). However, out of an abundance of caution and in deference to Plaintiff's pro se status, the Court recommends the complaint be dismissed without prejudice and with leave to amend.
V. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED that Plaintiff's claims against Defendant DeJoy be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide to Plaintiff 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.