Opinion
3:23-CV-1099 (GLS/ML)
12-15-2023
DAVID C. LETTIERI, Plaintiff, v. FED. BUREAU OF INVESTIGATION, Defendant.
APPEARANCES: OF COUNSEL: DAVID C. LETTIERI Pro Se Plaintiff Niagara County Jail
APPEARANCES: OF COUNSEL:
DAVID C. LETTIERI
Pro Se Plaintiff
Niagara County Jail
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
The Clerk has sent a Pro Se complaint in the above captioned action together with an application to proceed in forma pauperis (“IFP”) filed by David Lettieri (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 2, 7.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application and recommend that Plaintiff's Complaint be dismissed in its entirety without leave to amend. (Dkt. Nos. 1, 2, 7.)
I. BACKGROUND
A. Procedural History
Plaintiff commenced this action on August 30, 2023, by the filing of a complaint and motion for leave to proceed IFP. (Dkt. Nos. 1, 2.) On September 1, 2023, Senior United States District Judge Gary L. Sharpe administratively closed this action with an opportunity to comply with the filing fee. (Dkt. No. 3.) Judge Sharpe directed Plaintiff to, within thirty days either (1) pay the filing fee in full, or (2) submit a completed IFP application with a completed and signed inmate authorization form. (Id.) Judge Sharpe's order of September 1, 2023, was served on Plaintiff via regular mail. (Id.) On September 12, 2023, the Court received as undeliverable Judge Sharpe's order dated September 1, 2023. (Dkt. No. 4.)
On October 4, 2023, Plaintiff filed a letter stating that he did not receive an inmate authorization form. (Dkt. No. 5.) On October 5, 2023, the Court directed the Clerk of the Court to mail Plaintiff a blank inmate IFP application and inmate authorization form. (Dkt. No. 6.)
On October 30, 2023, Plaintiff filed an inmate authorization form. (Dkt. No. 7.) On November 7, 2023, the Clerk of the Court was directed to reopen this action and restore it to the Court's active docket. (Dkt. No. 8.) On November 13, 2023, the undersigned issued an order to show cause why this action should not be transferred to the United States District Court for the Western District of New York. (Dkt. No. 9.) On November 29, 2023, Plaintiff filed a response to the Court's order to show cause. (Dkt. No. 10.)
B. Complaint
Construed as liberally as possible, Plaintiff's Complaint appears to allege that his civil rights were violated by Defendant Federal Bureau of Investigations (“Defendant”). (See generally Dkt. No 1.) More specifically, Plaintiff alleges that on November 5, 2020, Defendant came to his house-which, according to Plaintiff's response to the Court's order to show cause, is located in Harpursville, New York (Dkt. No. 10 at 1)-with a search warrant. (Dkt. No. 1 at 12.) The Complaint alleges that the search warrant permitted a search of Plaintiff's house and vehicle but did not include the sheds located on the property. (Id.) Plaintiff alleges that two of Defendant's agents entered his brown shed and seized “a bunch of cell phones.” (Id.)
The court must interpret Pro Se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Based on these factual assertions, Plaintiff appears to assert the following two claims: (1) a claim that his right to be free from an unlawful search and seizure pursuant to the Fourth Amendment and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), was violated; and (2) a claim that his due process rights pursuant to the Fifth Amendment and Bivens, 403 U.S. 388, was violated. (Dkt. No. 1 at 4.) As relief, Plaintiff seeks the return of his property and $1,000,000 in compensatory damages. (Id. at 5.) \ Plaintiff seeks leave to proceed IFP. (Dkt. No. 2.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was commenced. However, the Court notes that Plaintiff did accumulate his third strike on September 21, 2023, after the filing of this action. Lettieri v. Broome Cnty. Humane Society, 20-CV-7777, 23-CV-7830, 2023 WL 8003478, at *1 (E.D.N.Y. Nov. 17, 2023).
Upon review, the Court finds that Plaintiff has submitted a completed IFP application which has been certified by an appropriate official at his facility (Dkt. No. 2), and which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization required in the Northern District. (Dkt. No. 7.)
Accordingly, Plaintiff's application to proceed with this action IFP is granted. (Dkt. No. 2.)
III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, 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).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[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 shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . 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). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
“[E]xtreme caution should be exercised in ordering sua sponte dismissal of a . . . complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that all causes of action be dismissed.
“It is well-settled that a [42 U.S.C.] § 1983 claim does not lie against the federal government, its agencies, or employees.” Feldman v. Lyons, 852 F.Supp.2d 274, 278 (N.D.N.Y. 2012) (collecting cases). In 1971, 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, 852 F.Supp.2d at 278. “Bivens actions, although not precisely parallel, are the federal analog to § 1983 actions against state actors.” Id. (citing Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987)). Yet, “[b]ecause implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability ‘to any new context or new category of defendants.” Krul v. Brennan, 501 F.Supp.3d 87, 101 (N.D.N.Y. 2020) (Hurd, J.) (quotation marks omitted) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
Importantly, Bivens remedies, in the few circumstances under which they are available, are only available against federal agents in their individual capacities. A Bivens remedy is unavailable against a federal agency or federal agents in their official capacities. See Rivera v. Fed. Bureau of Investigation, 16-CV-0997, 2016 WL 6081435, at *4 (N.D.N.Y. Sept. 13, 2016) (citation omitted) (Dancks, M.J.) (“The only remedy available in a Bivens action is an award of monetary damages from defendants in their individual capacities.”), report and recommendation adopted, 2016 WL 6072392 (N.D.N.Y. Oct. 17, 2016) (Mordue, J.). This is “[b]ecause an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived.” Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994); see F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); Mikhaylov v. United States, 29 F.Supp.3d 260, 272-73 (E.D.N.Y. 2014) (citations omitted) (“Bivens merely permits constitutional tort claims for monetary relief against federal agents in their personal capacities. Similar claims, however, may not be brought against the United States, federal agencies, or, by the same token, federal agents in their official capacities.”); see also Ross v. Dempsey Unif. & Linen Supply, 16-CV-1208, 2016 WL 8652438, at *7 (N.D.N.Y. Dec. 29, 2016) (Stewart, M.J.), report and recommendation adopted, 2017 WL 1207832 (N.D.N.Y. Mar. 31, 2017) (Mordue, J.), aff'd, 739 Fed.Appx. 59 (2d Cir. 2018) (summary order); Bullock v. DSS, CPS, Comm'r, 17-CV-1302, 2018 WL 1115218, at *7 (N.D.N.Y. Jan. 18, 2018) (Dancks, M.J.), report and recommendation adopted, 2018 WL 1111059 (N.D.N.Y. Feb. 26, 2018) (Sannes, J.).
As a federal agency, Defendant cannot be liable under Bivens. As a result, I recommend that Plaintiff's Bivens claims against Defendant be dismissed.
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in 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.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, 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); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
In this case, because “[t]he problem[s] with [plaintiff's] causes of action [are] substantive[,] better pleading will not cure [them,]” and any attempt to amend would, therefore, be futile. Cuoco, 222 F.3d at 112.; see, e.g., Mahmood v. United States Gov't, 20-CV-0207, 2020 WL 3965125, at *2 (N.D.N.Y. Mar. 17, 2020) (Stewart, M.J.) (“As such, his claims against the United States should be dismissed with prejudice.”), report and recommendation adopted sub nom., 2020 WL 1808206 (N.D.N.Y. Apr. 9, 2020) (D'Agostino, J.); Praileau v. United States, 18-CV-1196, 2018 WL 5811426, at *3 (N.D.N.Y. Nov. 6, 2018) (Stewart, M.J.) (recommending the dismissal of claims against the United States and its agencies with prejudice because such claims were barred by sovereign immunity), report and recommendation adopted, 2019 WL 422528 (N.D.N.Y. Feb. 4, 2019) (D'Agostino, J.); Moore v. Samuel S. Stratten Veterans Admin. Hosp., 16-CV-0475, 2016 WL 3659909, at *1 (N.D.N.Y. June 30, 2016) (Kahn, J.) (dismissing claims against agency of the United States with prejudice and without leave to amend). Because Plaintiff's Bivens claims are barred by sovereign immunity, no change to his pleading will cure this bar. Cox v. New York State, 2023 WL 2770368, at *10 (N.D.N.Y. Apr. 4, 2023) (Hummel, M.J.), report and recommendation adopted, 2023 WL 6862505 (N.D.N.Y. Oct. 18, 2023) (D'Agostino, J.).
As a result, I recommend that Plaintiff's Complaint be dismissed in its entirety without leave to amend.
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further
ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that Plaintiff has designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 7) and notify that official that Plaintiff has filed this action and is required to pay the Northern District of New York the entire statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff's inmate authorization form (Dkt. No. 7) to the Financial Deputy of the Clerk's office; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT PREJUDICE AND WITHOUT LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1); and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with 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).