Opinion
3:22-CV-0977 (BKS/ML)
09-15-2023
RUSSELL RAMEAL HARRIS, Plaintiff, v. BINGHAMTON POLICE DEPARTMENT and BRYAN SOSTOWSKI, In Individual Capacity, Defendants.
Russell Rameal Harris Pro se Bare Hill Correctional Facility Of Counsel:
Russell Rameal Harris Pro se Bare Hill Correctional Facility
Of Counsel:
REPORT AND RECOMMENDATION
Miroslav Lovric, United States Magistrate Judge
The Clerk has sent this Pro se Amended Complaint (Dkt. No. 32) to the undersigned for review. For the reasons discussed below, I recommend that the Amended Complaint be dismissed in its entirety without leave to amend. (Dkt. No. 32.)
I. BACKGROUND
As Plaintiff is proceeding Pro se, the undersigned has liberally construed the Amended Complaint, interpreting the strongest arguments possible based on the facts alleged therein. See Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (citations omitted).
The Amended Complaint alleges that Plaintiff's civil rights were violated by defendants Binghamton Police Department (“Defendant BPD”) and Bryan Sostowski (collectively “Defendants”). (See generally Dkt. No. 32.)
More specifically, Plaintiff alleges that on July 29, 2021, an “alleged victim” (Ryan Milazzo) contacted Defendant BPD regarding an incident involving Plaintiff. (Dkt. No. 32 at 2.) Plaintiff alleges that Mr. Milazzo provided a supporting deposition regarding the incident around 12:45 a.m. on July 29, 2021. (Id.; id. at 10-11.) Plaintiff alleges that Defendant Sostowski created an investigative summary and report which directed other officers “not to file charges or issue a warrant” against Plaintiff. (Id. at 2; id. at 15.) Plaintiff alleges that around 2:15 a.m. on July 29, 2021, Defendant Sostowksi generated an email sent to members of Defendant BPD that attached a wanted poster containing a picture of Plaintiff and a caption stating that there was probable cause to arrest Plaintiff with a direction that “[i]f located please take into custody and contact the Detective Bureau.” (Id. at 2; id. at 13-14.)
Plaintiff alleges that on August 2, 2021, he was approached by an officer employed by Defendant BPD and was told that there was a warrant for his arrest. (Dkt. No. 32 at 2.) Plaintiff alleges that he “submitted to the arrest” and was transported to the jail where he was detained. (Id.)
Plaintiff alleges that Investigator W. Balshuweit, generated a felony complaint that charged Plaintiff with Burglary in the First Degree in violation of N.Y. Pen. L. § 140.30(3), a class B felony. (Dkt. No. 32 at 2; id. at 12.) Plaintiff alleges that on August 3, 2021, Investigator Balshuweit filed the felony complaint and supporting deposition by Mr. Milazzo that was generated on July 29, 2021. (Id.) Plaintiff alleges that he was arraigned on August 3, 2021, then transported to the Broome County Correctional Facility where he remained detained. (Id.)
Plaintiff alleges that Mr. Milazzo failed to (1) present to law enforcement proof of purchase to establish that he was the legal owner of the item that Plaintiff allegedly took, (2) provide video or other witness proof that Plaintiff entered his residence, and (3) provide proof- other than his own affirmation-that Plaintiff used or threatened the use of a weapon. (Id. at 3.) Plaintiff alleges that Mr. Milazzo denied medical help when offered. (Id.) Plaintiff alleges that Defendant Sostowski showed Mr. Milazzo a single photo of Plaintiff instead of a photo array and did not verify whether Mr. Milazzo and Plaintiff were in the jail at the same time and in the same pod. (Id.)
The Amended Complaint appears to assert three claims (1) a claim against Defendants that Plaintiff's right to due process was violated pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; (2) a claim against Defendants of unreasonable seizure in violation of the Fourth Amendment and 42 U.S.C. § 1983; (3) a claim against Defendant Sostowski of “supervisor liability.” (See generally Dkt. No. 32.) Plaintiff does not set forth any relief that he seeks. (Id.)
Attached to the Amended Complaint are the following six documents: (1) one page from an examination of Defendant Sostowksi (Dkt. No. 32 at 9), (2) Mr. Milazzo's supporting deposition (id. at 10-11), (3) the felony complaint against Plaintiff (id. at 12), (4) Defendant Sostowksi's email dated July 29, 2021 (id. at 13), (5) the wanted person poster that Defendant Sostowski allegedly attached to his email on July 29, 2021 (id. at 14), and (6) Defendant Sostowski's investigative report (id. at 15).
Mr. Milazzo's supporting deposition states that on July 29, 2021, at approximately 12:45 a.m., Plaintiff entered Mr. Milazzo's residence uninvited, demanded Mr. Milazzo's phone, punched Mr. Milazzo in the face, hit Mr. Milazzo multiple times, took Mr. Milazzo's phone, threatened to strike Mr. Milazzo with brass knuckles, and left Mr. Milazzo's residence. (Dkt. No. 32 at 10-11.) The supporting deposition alleges that Mr. Milazzo was familiar with Plaintiff because they were housed in the Broome County Jail H-pod together for approximately one month. (Id.)
Defendant Sostowski's investigative report states that on July 29, 2021, Defendant Sostowski was dispatched to patrol, he printed out a picture of Plaintiff, showed it to Mr. Milazzo, who identified the individual in the picture as Plaintiff. (Id. at 15.) The investigative report further states that Defendant Sostowski directed another officer not to file charges or a warrant for Plaintiff yet, then Defendant Sostowksi created a “Wanted Flier” for Plaintiff and distributed it via e-mail to the other members of Defendant BPD. (Id.)
II. RELEVANT LEGAL STANDARD GOVERNING INTIAL REVIEW OF A COMPLAINT
Having found that Plaintiff met the financial criteria for commencing this action in forma pauperis, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e). Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that- . . . (B) 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); see also 28 U.S.C. 1915A(a) (“The court shall review . . . as soon as practicable . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Additionally, when reviewing a complaint, a court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), rev'd on other grounds, 682 Fed.Appx. 30. “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 the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
Finally, a few words are appropriate regarding what documents are considered when the court reviews a complaint pursuant to 28 U.S.C. § 1915. Generally, the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: “(1) documents attached to the complaint, (2) any documents incorporated in the complaint by reference, (3) documents deemed integral to the complaint, and (4) public records.” Cain v. Rambert, 13-CV-5807, 2014 WL 2440596, at *2 (E.D.N.Y. May 30, 2014) (citing L-7 Designs, Inc. v. Old Navy LLC, 647 F.3d 419, 422 (2d Cir. 2011) (documents attached to the complaint, those incorporated by reference, and those integral to the complaint); Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006) (documents integral to the complaint); Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (public records)).
III. ANALYSIS
Having reviewed Plaintiff's Amended Complaint, and construing the allegations liberally, I recommend that all causes of action be dismissed.
As an initial matter, the Court also notes that “[a]lthough a municipality is subject to suit pursuant to section 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal police department does not have the capacity to be sued as an entity separate from the municipality in which it is located.” White v. Syracuse Police Dep't, 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, 559 F.Supp.2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F.Supp.2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit and no claims lie directly against the Department.”)), report and recommendation adopted by, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.). Thus, Defendant BPD is not a proper party, amenable to suit. However, for the reasons set forth below, even construing Plaintiff's claims against Defendant BPD as against the City of Binghamton, I recommend dismissal of the Amended Complaint.
A. Substantive Due Process - Deliberate Indifference
As set forth in the undersigned's Order and Report-Recommendation dated January 26, 2023, “not all wrongs perpetrated by a government actor violate due process.” Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir. 2002). “[A] substantive due process claim ‘must allege governmental conduct that is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'” Apatow v. Town of Stratford, 21-CV-1692, 2023 WL 122038, at *5 (D. Conn. Jan. 6, 2023) (quoting Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005)). “Substantive due process is an outer limit on the legitimacy of governmental action . . . [and its] standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999).
I recommend that Plaintiff's substantive due process claim be dismissed because Plaintiff does not allege facts plausibly suggesting that the actions of Defendants were so arbitrary and conscience-shocking that they violated his substantive due process rights. I find that after obtaining the supporting deposition from Ryan Milazzo (Dkt. No. 32 at 10-11), it cannot be said that the arrest of Plaintiff “was without any reasonable justification in the service of a legitimate governmental objective.” Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999).
Moreover, the undersigned notes that Plaintiff appears to allege that his due process rights were violated because there was not probable cause for his arrest. As set forth in the undersigned's Order and Report-Recommendation dated January 26, 2023, this assertion is properly analyzed under the Fourth Amendment, rather than substantive due process. See Brown v. City of New York, 16-CV-1919, 2018 WL 3821620, at *12 (S.D.N.Y. Aug. 10, 2018) (finding that the plaintiffs' claim that Mr. Brown was “arrested and kept from his family as a result of [Detective] Cardona's alleged fabrication of charges is properly analyzed under the Fourth Amendment, rather than substantive due process.”); see also Tenenbaum, 193 F.3d at 600 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)) (“Substantive due process analysis is therefore inappropriate in this case . . . if [the] claim is ‘covered by' the Fourth Amendment.”).
The undersigned considered Plaintiff's Fourth Amendment claim below in Part III.B. of this Report and Recommendation.
To the extent that Plaintiff alleges that “the identification procedures used were unfairly suggestive, [his] constitutional rights would not have been violated until he was convicted on the basis of the suggestive identification.” Hasan v. Onondaga Cnty., 18-CV-0806, 2018 WL 4055296, at *5 n. 8 (N.D.N.Y. Aug. 2, 2018) (Baxter, M.J.) (citing Wray v. City of New York, 490 F.3d 189, 193 (2d Cir. 2007) (there is no constitutional right not to be subjected to an unconstitutionally suggestive identification)), report and recommendation adopted, 2018 WL 4054105 (N.D.N.Y. Aug. 24, 2018) (Sharpe, J.). Moreover, in order to state a claim, a plaintiff “would have to show that the officers misled or pressured the prosecution or the trial judge. It is the admission of the testimony carrying a likelihood of misidentification which violates a [criminal] defendant's right to due process.” Hasan, 2018 WL 4055296, at *5 n.8 (citing Wray, 490 F.3d at 193).
As a result, I recommend that Plaintiff's due process claims be dismissed. See Hasan, 2018 WL 4055296, at *5 n.8 (“[i]t is unclear what evidence was admitted at trial. Thus, at this time, there are multiple reasons to dismiss any claims against the officers who plaintiff alleges were involved in the alleged show up.”); see also Jiang v. Corpuz, 19-CV-5664, 2022 WL 4539425, at *6 (E.D.N.Y. Sept. 28, 2022) (holding that the due process focus is principally on the fairness of the trial and not the conduct of police; thus, a suggestive pre-trial identification cannot, standing alone, violate a plaintiff's fair-trial right).
B. Unreasonable Seizure Claim
Liberally construed, Plaintiff asserts a false arrest claim against Defendants. A Section 1983 claim for false [arrest] is anchored in the Fourth Amendment right ‘to be free from unreasonable seizures.'” Iverson v. Annucci, 18-CV-0886, 2020 WL 1083152, at *6 (W.D.N.Y. Feb. 28, 2020) (citing Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007)). For Section 1983 purposes, “false imprisonment is merely a species of false arrest.” Bowman v. City of Middletown, 91 F.Supp.2d 644, 660 (S.D.N.Y. 2000) (citing Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)). “In analyzing false imprisonment claims under Section 1983, the Second Circuit has generally looked to the law of the state in which the arrest occurred.” Aragon v. New York, 14-CV-9797, 2017 WL 2703562, at *5 (S.D.N.Y. June 22, 2017) (citing Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006)).
To state a false arrest or false imprisonment claim under New York law, a plaintiff must allege: “(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement[,] and (4) the confinement was not otherwise privileged.'” Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting McGowan v. United States, 825 F.3d 118, 126 (2d Cir. 2016)). An arrest is privileged if it is based on probable cause. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest.”); accord Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (“Probable cause is a complete defense to an action for false arrest.”); Heyliger v. Peters, 771 Fed.Appx. 96, 97 (2d Cir. 2019) (summary order) (Since “[a]n arrest is privileged if it is supported by probable cause,” the existence of probable cause to arrest “is an absolute defense to a false arrest claim.”).
Here, the Court has already held that the indictment established a presumption of probable cause to commence the proceeding. (Dkt. No. 24 at 4-5.)
Notwithstanding this holding, the Amended Complaint appears to allege that probable cause was lacking because (1) Mr. Milazzo did not provide a receipt for the phone Plaintiff allegedly stole, (2) there was no video or other witness statement supporting Mr. Milazzo's assertion that Plaintiff entered Mr. Milazzo's residence, (3) there was no additional evidence supporting Mr. Milazzo's assertion that Plaintiff threatened to use a weapon, (4) Mr. Milazzo denied offers to summon medical treatment, (5) Defendant Sostowski failed to verify that Plaintiff and Mr. Milazzo were housed in the jail together at the same time. (Dkt. No. 32 at 3-4.) However, “probable cause may be based solely on information received from an alleged victim or eyewitness, so long as there is no reason to doubt that person's veracity.” Brown v. City of New York, 2018 WL 3821620, at *7 (citing Weiner v. McKeefery, 90 F.Supp.3d 17, 30 (E.D.N.Y. 2015) (dismissing false arrest claim upon finding of probable cause to arrest the plaintiff for endangering the welfare of a child based solely upon statements by the plaintiff's children describing the plaintiff throwing a child against the wall of a car, despite the plaintiff's claims of failure to investigate); Slater v. Mackey, 12-CV-4325, 2015 WL 6971793, at *12 (E.D.N.Y. Nov. 10, 2015) (dismissing false arrest claim upon finding of probable cause to arrest the plaintiff for assault on her child resulting in black eye and bruises to the child based upon a statement by the plaintiff's child, combined with corroborating evidence)). The Amended Complaint fails to allege facts plausibly suggesting that Defendants should have or did have any reason to doubt the credibility of Mr. Milazzo. Thus, the Amended Complaint fails to allege facts plausibly suggesting that Plaintiff's arrest occurred without probable cause.
As a result, I recommend that Plaintiff's unreasonable seizure claim against Defendants be dismissed.
C. Supervisory Liability
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Courts in this circuit routinely hold that “the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy the prerequisite of personal involvement. Therefore, a prison official may not be found liable for a constitutional violation merely because of the acts of those under his control.” Kinch v. Artuz, 97-CV-2419, 1997 WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Thus, supervisory officials may not be held liable for their subordinates' constitutional violations merely because they are in a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Colon, 58 F.3d at 874 (holding that the fact that the defendant occupied a high-ranking position in the New York prison hierarchy, without more, was insufficient to establish personal involvement).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the Second Circuit concluded that “there is no special rule for supervisory liability,” and held that a “plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, had violated the Constitution.'” Tangreti, 983 F.3d at 618. The Second Circuit explained that, “‘the factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue' because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
There is no constitutional claim solely for “supervisory liability” and, as set forth above, I recommend dismissal of Plaintiff's underlying constitutional claims for failure to state a claim upon which relief may be granted. As a result, I recommend dismissal of Plaintiff's claim for “supervisory liability” against Defendant Sostowski. See Elek v. Inc. Vill. of Monroe, 815 F.Supp.2d 801, 808 (S.D.N.Y. 2011) (citations omitted) (“[B]ecause Plaintiff has not established any underlying constitutional violation, she cannot state a claim for § 1983 supervisor liability.”).
IV. OPPORTUNITY TO AMEND
Generally, “[a] Pro se complaint should not be dismissed without the court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Nielson v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation and internal quotation marks omitted); see also FED. R. CIV. P. 15(A)(2) (“The court should freely give leave when justice so requires.”). Leave 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).
Out of deference to Plaintiff's Pro se status, the undersigned previously recommended that he be permitted to amend his Complaint. (Dkt. No. 18 at 18-20.) However, at this juncture, Plaintiff has already amended the complaint after the Court's analysis identifying the deficiencies in the Complaint. (See generally docket sheet.) “In general, a plaintiff's failure to fix deficiencies in the previous pleading, after being provided notice of them, is alone sufficient ground to deny leave to amend.” Sherman v. Yonkers Public Schs., 21-CV-7317, 2023 WL 137775, at *11 (S.D.N.Y. Jan. 9, 2023) (citing Nat'l Credit Union Admin. Bd. v. U.S. Bank Nat'l Ass'n, 898 F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the deficiencies in his complaint when he first amended, he clearly has no right to a second amendment even if the proposed second amended complaint in fact cures the defects of the first. Simply put, a busy district court need not allow itself to be imposed upon by the presentation of theories of seriatim.”); In re Eaton Vance Mut. Funds Fee Litig., 380 F.Supp.2d 222, 242 (S.D.N.Y. 2005) (denying leave to amend because “the plaintiffs have had two opportunities to cure the defects in their complaints, including a procedure through which the plaintiffs were provided notice of defects in the Consolidated Amended Complaint by defendants and given a chance to amend their Consolidated Amended Complaint,” and “plaintiffs have not submitted a proposed amended complaint that would cure these pleading defects”), aff'd sub nom.; Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per curiam) (“[P]laintiffs were not entitled to an advisory opinion from the Court informing them of the deficiencies in the complaint and then an opportunity to cure those deficiencies.”)). As a result, I recommend that the Amended Complaint be dismissed without leave to replead. See Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir. 2003) (quoting Dluhos v. Floating & Abandoned Vessel, Known as “New York,” 162 F.3d 63, 69 (2d Cir. 1998)) (finding that the “District Court did not abuse its discretion in denying [the plaintiff] leave to amend the complaint because there was a ‘repeated failure to cure deficiencies by amendments previously allowed.'”); Salinger v. Projectavision, Inc., 972 F.Supp. 222, 236 (S.D.N.Y. 1997) (“Three bites at the apple is enough.”).
ACCORDINGLY, it is respectfully
RECOMMENDED that the Amended Complaint (Dkt. No. 32) be DISMISSED WITHOUT LEAVE TO AMEND, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915, 1915A; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the parties, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in 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).