Opinion
1:24-CV-855 (GTS/DJS)
08-05-2024
DOUGLAS M. KELLY, Plaintiff, v. O STATE OF NEW YORK, Attorney General, Defendant.
DOUGLAS M. KELLY Plaintiff, Pro Se.
DOUGLAS M. KELLY Plaintiff, Pro Se.
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned pursuant to L.R. 72.3(d).
DANIEL J. STEWART United States Magistrate Judge.
The Clerk has sent the undersigned Plaintiff's civil Complaint for review pursuant to 28 U.S.C. § 1915(e). Dkt. No. 1, Compl. Plaintiff has not paid the filing fee, but instead submitted a Motion to Proceed in forma pauperis (“IFP”). Dkt. No. 2, IFP App. The Complaint asserts claims under 42 U.S.C. § 1983. See generally Compl.
I. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, “(2) . . . 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). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before the court may permit the plaintiff to proceed with his action in forma pauperis. See Id. In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants, 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) (internal citations omitted). 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 Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although a 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.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[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 Bell Atl. Corp. v. 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
Plaintiff alleges that on “September 17, 2024 [sic],” he was unconstitutionally arrested for a DWAI in Malta, New York. Compl. at p. 3. During his arrest, Plaintiff seems to allege that Defendant sought a “blood-draw” without a warrant, and that this constituted “Ultra vires exceedance of [Defendant's] authority.” Id. Plaintiff further alleges that Defendant ignored FOIL requests and other requests for communication. Id. Plaintiff also alleges “[m]ultiple . . . attempts to enlist oversight” through the “NYS OIG” to no avail due to the Defendant's alleged jurisdiction over the matter. Id. Finally, Plaintiff alleges that the “NYS DMV commits multiple, open abridgements of published NYS law.” Id. Plaintiff's causes of actions are “[w]illful, knowing abrogation of Constitutional civil rights protections by NYS ‘actors'”; “NYS Attorney General claims, both, original and final ‘jurisdiction', has effectively muzzled multiple Inspectors General, and has rendered state-supplied ‘remedies' as a farce. This is Ultra vires, as the AG Office has never been conceived-of as possession such authority”; and “[d]eliberate, willful, knowing abrogations of civil rights in acts taken ‘under color of law' is express evidence of fraud, and fraud undertaken to profit the State at a citizen's cost.” Id. at p. 4.
C. Analysis of the Complaint
1. Proper Defendant
The Complaint in its present form “fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “To state a claim under Section 1983, the plaintiff must allege that a person acting under color of state law deprived him of a right secured by the Constitution or laws of the United States.” Conquistador v. Offices of Att'y Gen. of Conn., 2017 WL 11707851, at *2 (D. Conn. Mar. 13, 2017). “The Eleventh Amendment bars such a federal court action against a state or its agencies absent a waiver of immunity or congressional legislation specifically overriding immunity.” Mamot v. Bd. of Regents, 367 Fed.Appx. 191, 192 (2d Cir. 2010) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984)). “It is well-established that New York has not consented to § 1983 suits in federal court, and that § 1983 was not intended to override a state's sovereign immunity.” Id. (internal citations omitted). Thus, “state agencies do not fall within the meaning of ‘persons' for purposes of Section 1983.” Bryant v. New York State Dep't of Corr. Servs. Albany, 146 F.Supp.2d 422, 426 (S.D.N.Y. 2001).
Here, it is unclear as to whether Plaintiff has named the Office of the Attorney General or the Attorney General herself as Defendant in this matter. Compl. at p. 1. Because the Office of the Attorney General of the State of New York is a state agency, it cannot be a defendant in a Section 1983 claim. See Bryant v. New York State Dep't of Corr. Servs. Albany, 146 F.Supp.2d at 426. Instead, “Plaintiff must specifically ‘name as a defendant a state official rather than a state or a state agency directly'” in a Section 1983 claim. Id. (quoting Santiago v. New York State Dep't of Corr. Servs., 945 F.2d 25, 32 (2d Cir. 1991)).
The Court will assume, for purposes of the remainder of the opinion, that Plaintiff sought to name the Attorney General personally.
Accordingly, the Complaint as to either the State of New York or the Office of the Attorney General fails to state a claim upon which relief may be granted under 42 U.S.C. § 1983. 28 U.S.C. § 1915(e)(2)(B)(ii).
2. Rule 8
Rule 8 of the Federal Rules of Civil Procedure provides that a properly pled complaint under which relief may be obtained must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “The purpose of this Rule ‘is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.'” Hudson v. Artuz, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).
From the facts presently alleged, the Complaint fails to withstand Rule 8 scrutiny. While Plaintiff seems to allege a traffic stop incident that violated his rights due to an “unconstitutional arrest” and “blood-draw,” the full factual background of the incident remains unclear, as does Defendant's role in the alleged arrest. Compl. at p. 3. There is no indication that Defendant was allegedly present or otherwise directly involved in the alleged arrest or “blood-draw” incident as the Complaint currently stands. Id.; see Kanciper v. Lato, 989 F.Supp.2d 216, 234 (E.D.N.Y. 2013) (“[I]ndividual defendants can only be liable for Section 1983 violations if they were personally involved in the alleged constitutional deprivations.”). Likewise, the claims regarding Defendant's alleged “jurisdiction” over the matter, alleged “[u]ltra vires” conduct, and alleged FOIL requests denials, along with the role of the Office of the Inspector General and “NYS DMV” in this matter, are unclear due to the lack of specific facts provided in Plaintiff's Complaint. Id. In sum, Plaintiff's conclusory allegations that Defendant acted “under color of law” in a way that deprived him of his rights fails to satisfy Rule 8. Id.; see also Ashcroft v. Iqbal, 556 U.S. at 678 (explaining that Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).
Accordingly, because the Complaint “tenders naked assertions devoid of further factual enhancement,” it fails to conform to Rule 8 requirements. Id.
3. Rule 10
Rule 10(b) of the Federal Rules of Civil Procedure states:
A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense.FED. R. CIV. P. 10(b). “The purpose of Rule 10 is to ‘provide an easy mode of identification for referring to a particular paragraph in a prior pleading.'” Hudson v. Artuz, 1998 WL 832708, at *2 (quoting Sandler v. Capanna, 1992 WL 392597, at *3 (E.D. Pa. Dec. 17, 1992)). Here, Plaintiff's Complaint fails to satisfy Rule 10 because he did not state his claims in “numbered paragraphs” with “each claim founded on a separate transaction or occurrence” such that the Court can discern the factual and legal basis of the allegation. FED. R. CIV. P. 10(b).
Accordingly, the current Complaint violates Rule 10 of the Federal Rules of Civil Procedure.
D. Leave to Amend
The Court recommends that Plaintiff's Complaint be dismissed, with leave to amend. “[A] court should not dismiss a complaint filed by a pro se litigant 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.'” Bruce v. Tompkins Cnty. Dep't of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). The deficiencies identified above could potentially be rectified by more detailed pleading and so the Court recommends that the Complaint be dismissed, but that Plaintiff be afforded an opportunity to amend. Plaintiff is advised that any such amended complaint shall supersede and replace in its entirety the previous Complaint filed by Plaintiff. If this recommendation is accepted and Plaintiff is permitted to amend his Complaint, Plaintiff is further warned that the failure to submit an amended complaint could result in dismissal of this action.
II. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be DISMISSED with leave to amend; and it is
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
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, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a).
If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the 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).