Opinion
6:23-cv-00323 (LEK/TWD)
05-01-2023
FRANCIS D. HELMER, Plaintiffs, v. TIMOTHY SEYMOUR, TIFFANY DOE, and LISA BURDICK, Defendants.
FRANCIS D. HELMER, Plaintiff, pro se
FRANCIS D. HELMER, Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent to the Court for review a complaint brought pursuant to 42 U.S.C. § 1983, filed by Francis D. Helmer (“Plaintiff”). (Dkt. No. 1.) Plaintiff has not paid the filing fee for the action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
I. IFP APPLICATION
The Court may grant IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). Upon review, Plaintiff has submitted a completed and signed IFP application, which demonstrates economic need. (Dkt. No. 2.) Accordingly, the Court grants his application for leave to proceed IFP.
Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and costs he may incur in this action.
II. INITIAL REVIEW
A. Legal Standard
When a plaintiff seeks to proceed IFP, “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). Thus, even if a plaintiff satisfies the financial criteria to commence an action IFP, it is the Court's responsibility to determine whether the plaintiff may properly maintain the complaint that he or she filed in this District. See id.
In reviewing a pro se litigant's complaint, the court has a duty to liberally construe the pleadings, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis in original). Therefore, 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). “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) (citing Twombly, 550 U.S. at 556).
Although 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.” 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. “[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 ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal quotation marks and alterations omitted).
B. Summary of the Complaint
The complaint, dated March 13, 2023, names the following individuals as Defendants: Timothy Seymour, Commissioner of DSS; PINS Worker Tiffany Doe; and Lisa Burdick, Supervisor (CPS). (Dkt. No. 1 at ¶ 3.) Plaintiff alleges Lisa Burdick “was told months ago to call [Plaintiff] to “let [him] know about his 14 year old son.” Id. at ¶ 4. However, Lisa Burdick “refused to do her job.” Id. On March 7, 2023, Plaintiff tried to talk to Tiffany about visitation with his son, “which is ordered by the court's [sic]” but she “refused” to follow [the] court's orders. Id. Timothy Seymour, is also “refusing” Plaintiff's “court ordered visitation[.]” Id. “This has been going for years.” Id. The County of Herkimer is “corrupt” and “all three Defendants are also allowing [Plaintiff's] son to visit a child molester which is another court order violation.” Id. Plaintiff alleges Defendants are a danger to his son and “all kids.” Id.
Plaintiff lists his first cause of action as follows: “For each Defendant to pay $4 million each. Defendant Tiffany (PINS) Worker to pay $4 million, Lisa Burdick to pay $4 million, and Timothy Seymour to pay $4 million.” Id. at ¶ 5. As to the second cause of action, Plaintiff states, “For each defendant to be removed from there [sic] job and lose all pay.” Id. The third cause of action states “And for each Defendant to be finded [sic].” Id. In his prayer for relief, Plaintiff requests that “all three cause [sic] of action” be “granted.” Id. at ¶ 6. In the Civil Cover Sheet, Plaintiff refers to a “violation of civil rights” and “violation of court orders and putting my son in danger.” (Dkt. No. 1-1.)
C. Analysis
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of action “for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights [but] provides . . . only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To state a valid claim pursuant to § 1983, a complaint must allege “(1) ‘that some person has deprived [the plaintiff] of a federal right,' and (2) ‘that the person who has deprived [the plaintiff] of that right acted under color of state . . . law.'” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)); accord Byng v. Delta Recovery Servs. LLC, 568 Fed.Appx. 65, 65-66 (2d Cir. 2014). Having carefully reviewed Plaintiff's complaint, the Court recommends that it be dismissed in its entirety.
Plaintiff has not provided “a short and plain statement of the claim showing that [he] is entitled to relief” nor has he established this Court's jurisdiction. See Fed.R.Civ.P. 8(a)(2); Fed.R.Civ.P. 12(h)(3) (court may raise basis of its jurisdiction sua sponte). When subject matter jurisdiction is lacking, dismissal is mandatory. United States v. Griffin, 303 U.S. 226, 229 (1938); Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). The complaint fails to provide specific facts relevant to the claims, or to relate them to federal causes of action. Plaintiff's so-called “causes of action” fail to give Defendants “fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. 544, 555; see also Fed.R.Civ.P. 8(a)(2). Because Plaintiff failed to plausibly allege that one of the Defendants violated one or more of his federal rights the Court recommends dismissing the complaint for failure to state a claim upon which relief may be granted.
Due to the nature of Plaintiff's complaint, it is difficult to precisely determine exactly which doctrine applies, but his claims, if any, are also likely barred. To that end, “the Rooker-Feldman doctrine bars a district court from reviewing a family court's determinations regarding custody, neglect and visitation where those issues have been decided after providing the plaintiff a full and fair opportunity to litigate those issues.” Arena v. Dep't of Soc. Servs. of Nassau Cty., 216 F.Supp.2d 146, 152 (E.D.N.Y. 2002) (citing Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir. 2002)). “Under the domestic relations exception to the jurisdiction of federal courts, cases involving divorce, alimony, and child custody remain outside federal court jurisdiction.” Amato v. McGinty, No. 1:21-CV-0860 (GLS/TWD), 2022 WL 226798, at *10 (N.D.N.Y. Jan. 26, 2022) (citing Marshall v. Marshall, 547 U.S. 293, 308 (2006)). In the event that Plaintiff's underlying custody state court proceeding remains pending, this Court's involvement may also implicate the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). Under the Younger doctrine, “federal courts [must] abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002).
Generally, when the Court dismisses a pro se complaint sua sponte, the plaintiff should be afforded the opportunity to amend at least once; however, leave to replead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). “[L]ack of subject matter jurisdiction is a substantive defect that cannot be cured by better pleading.” Moran v. Proskauer Rose LLP, No. 1:17-cv-00423 (MAD/TWD), 2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017). In light of Plaintiff's pro se status, the Court recommends that prior to outright dismissal of this action, leave to amend be granted.
Should Plaintiff be granted leave to amend, any amended complaint must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure and Local Rule 10.1. Any amended complaint must be a complete pleading which will supersede and replace the original complaint in its entirety. Any amended complaint submitted by Plaintiff must set forth all of the claims he intends to assert against the defendants and must demonstrate that a case or controversy exists between Plaintiff and the defendants which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. “[C]omplaints 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)).
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED that Plaintiff's IFP application is (Dkt. No. 2) is GRANTED; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
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).
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).
IT IS SO ORDERED.