Opinion
5:23-CV-0346 (DNH/ML)
05-17-2023
SHANEE A. LEWIS, Plaintiff, v. U.S. GOVERNMENT, Protect Citizens, Defendant.
SHANEE A. LEWIS Plaintiff, Pro Se
SHANEE A. LEWIS
Plaintiff, Pro Se
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 and a motion for appointment of counsel filed by Plaintiff Shanee A. Lewis (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 2, 3.) For the reasons discussed below, I (1) grant Plaintiff's in forma pauperis application (Dkt. No. 2), (2) deny Plaintiff's motion for appointment of counsel (Dkt. No. 3), (3) recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed in its entirety with leave to amend.
I. BACKGROUND
On March 20, 2023, Plaintiff commenced this action by filing a pro se Complaint against defendant U.S. Government (“Defendant”). (Dkt. No. 1.) In addition, Plaintiff filed a motion for leave to proceed in forma pauperis (Dkt. No. 2) and a motion for appointment of counsel (Dkt. No. 3).
The Court notes that Plaintiff's Complaint includes six pages of a narrative written on lined paper. (Dkt. No. 1 at 5-10.) The narrative portion appears to include several other individuals or entities against whom Plaintiff alleges have wronged her. (Id.) However, the portion of Plaintiff's Complaint completed on the form complaint pursuant to Title VII of the Civil Rights Act as Amended lists only the “U.S. Government” as Defendant and leaves blank a space for an additional defendant or defendants to be listed. (Dkt. No. 1 at 1-2.) As a result, the undersigned concludes that Plaintiff did not intend to include these individuals and entities as additional defendants but was merely outlining the alleged historical information for purposes of placing her allegations and claims in context.
The Complaint is on a form complaint, which purports to assert actions arising under Title VII of the Civil Rights Act, as amended. (See generally Dkt. No. 1.) The Complaint indicates that it is brought pursuant to both the (1) “Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, for employment discrimination based on race, color, religion, sex or national origin,” and (2) “Pregnancy Discrimination Act of 1978, codified at 42 U.S.C. § 2000e(k), as amended, Civil Rights Act of 1964, and the Civil Rights Act of 1991, for employment discrimination based on pregnancy.” (Dkt. No. 1 at 2.) Notwithstanding, Plaintiff checked the boxes for each pre-printed answer on the form complaint identifying Defendant's conduct as discriminatory-race or color, religion, sex (or sexual harassment), national origin, and other-except pregnancy. (Id.)
Based on the undersigned's interpretation of the Complaint, it appears as though Plaintiff is suing Defendant based on its failure to protect her (as a citizen) from the alleged wrongs of others and difficult situations in her life. (See generally Dkt. No. 1.)
Under the “facts” heading of the form complaint portion of the Complaint, Plaintiff appears to allege that Stewarts Shops reviewed Plaintiff's employment application and hired others despite Plaintiff living nearby and having financial responsibilities. (Dkt. No. 1 at 3.) Under the causes of action portion of the form complaint, Plaintiff left blank the first cause of action. (Id.) Under the second cause of action, Plaintiff alleges that she “never received paper copies of an acknowledgement from Human Rights from past reports until March 2023.” (Id. at 4.) Under the third cause of action, Plaintiff states, “My driving abstract is ridiculous.” (Id.)
The lined paper narrative portion of the Complaint alleges that at some time in 2020, Plaintiff's employment with the New York State Office of People with Developmental Disabilities was terminated and that, as a result, she and her two minor children were evicted from their home. (Dkt. No. 1 at 5.) Plaintiff alleges that she has sought assistance from the Department of Social Services but has been denied because her “housing was too expensive and/or [she] make[s] too much money to receive help.” (Id. at 6.)
Plaintiff alleges that she asked medical providers Joseph Morala, Zakia Moss, and Helen O'Neil at unspecified times to be “tested for cancer and still ha[s] not been granted the opportunity.” (Id.) Plaintiff alleges that in May 2020, and again in August 2020, she sustained physical injuries and was “left without an aide or nurse to help [her] while [she] cared for 2 small children.” (Id.; accord Dkt. No. 1 at 6-7.)
Plaintiff alleges that she sought orders of protection from New York State Family Court and Criminal Court but was denied relief by both courts. (Dkt. No. 1 at 7.)
The Complaint alleges that in January 2021, Plaintiff reported that she was raped to Detective Whickine with the Syracuse Police Department. (Id.)
Plaintiff alleges that Judge Julie Cerio “took [her] rights away as a mother” and directed “court officers [to] put[ Plaintiff] in hand cuffs . . . for speaking when spoken to.” (Id.) Plaintiff alleges that Child Protective Services harassed her and “coerced [her] into giving [her] children to [her] faither who [she has] not lived with since 2003.” (Dkt. No. 1 at 7-8.)
Plaintiff alleges that at some time in 2021, a nurse at St. Joseph's Hospital dragged her in an aggressive manner while Plaintiff was experiencing symptoms of a stroke. (Dkt. No. 1 at 8.) In addition, Plaintiff alleges that St. Joseph's Hospital “sent [her] home with a kidney infection and told [her] nothing was wrong.” (Id.)
Plaintiff alleges that at some time in 2022, an EMT who worked for NOVA Ambulance stated that he was smarter than Plaintiff. (Id.)
Plaintiff alleges that at some time in 2022, Paul and Elena in loss prevention at Amazon fulfillment center “sent [Plaintiff] home in the middle of [her] shift and told [her that she] could not return until [she] got a mental evaluation.” (Id.)
Plaintiff alleges that the manager at Little Caesars told her that she was unreliable because she had to quarantine with her children that had COVID-19. (Dkt. No. 1 at 9.)
The Complaint alleges that Maxim Health Care would not let Plaintiff work at an unspecified time because Plaintiff was in and out of the hospital. (Id.)
Plaintiff alleges that AmeriCu Credit Union was unable to explain how $88.00 went missing from Plainitff's bank account and told her that unemployment was not a valid source of income for purposes of obtaining a bank loan. (Id.)
Plaintiff alleges that Empower Credit Union told her that it “did not like how [she] paid a past loan off and den[ied her] financial assistance after coming off of maternity leave.” (Id.)
The Complaint alleges “New Millenium - Worker Ed.” denied the application of Plaintiff ad her co-signor and asked Plaintiff “if [she] had any other job besides gang affiliation. [She] had red hair for [her] birthday.” (Id.)
Finally, the Complaint alleges that “Planned Parenthood violated [her] HIPPA [sic] rights.” (Dkt. No. 1 at 10.)
Plaintiff alleges that she is “filing this lawsuit under the terms negligence, neglect, loss of property prejudice, discrimination, harassment, bullying, mental abuse, financial abuse, trauma, pain and suffering, and being separated from my children.” (Dkt. No. 1 at 10.) As relief, Plaintiff appears to be seeking $3,000,005,225 in damages, her children to be placed back in her custody, and “to stop being harassed.” (Id.)
For a more complete statement of Plaintiff's claims, refer to the Complaint. (Dkt. No. 1.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.
The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Plaintiff is reminded that, although her application to proceed in forma pauperis has been granted, she is still required to pay fees that she may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR 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 determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous).
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.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se 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).
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.
As the Complaint is currently drafted, the Court is unable to meaningfully analyze, whether, and to what extent, Plaintiff has pleaded any colorable claim against Defendant. (See generally Dkt. No. 1.) Plaintiff's Complaint places an unjustified burden on the Court and, ultimately, on Defendant “‘to select the relevant material from a mass of verbiage.'” Salahuddin v. Cuomo, 861 F.2d 40, 41-42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281, at 365 (1969)).
As a result, I recommend the complaint be dismissed as frivolous. See, e.g., Gillich v. Shields, 18-CV-0486, 2018 WL 2926299 (N.D.N.Y. Apr. 30, 2018) (Peebles, M.J.), report and recommendation adopted by 2018 WL 2926302, at *3 (N.D.N.Y. Jun. 8, 2018) (D'Agostino, J.); Canning v. Hofmann, 15-CV-0493, 2015 WL 6690170, at *5 (N.D.N.Y. Nov. 2, 2015) (Hurd, J.) (“Under these circumstances, having found that none of the allegations in Plaintiff's meandering and indecipherable Complaint raise a cognizable cause of action, the Court concludes that the Complaint fails to state a claim upon which relief may be granted and is subject to dismissal.”); see also Salahuddin, 861 F.2d at 42 (“Dismissal [for failure to comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure] . . . is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.”).
In the alternative, I recommend that Plaintiff's Complaint be dismissed for failure to state a claim upon which relief may be granted. The rambling Complaint fails to allege any action taken by Defendant or an individual acting on Defendant's behalf and thus fails to allege that Defendant violated Plaintiff's rights. As a result, I recommend that Plaintiff's Complaint be dismissed for failure to state a claim upon which relief may be granted.
Even if the Complaint was construed as asserting causes of action against the individuals and entities listed in the narrative portion of the Complaint, I find that the terse allegations against each individual and entity, fail to state a claim upon which relief may be granted. Moreover, some of the individuals and entities are likely immune from relief. For example, Judge Julie A. Cerio in her capacity as a judge, is likely immune from suit pursuant to the doctrine of judicial immunity. Moreover, the New York State Family Court and Criminal Court are likely immune from suit pursuant to the Eleventh Amendment.
V. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead 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 replead 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, it is not clear whether better pleading would permit Plaintiff to assert a cognizable cause of action against Defendants. Out of deference to Plaintiff's pro se status, however, I recommend that Plaintiff be granted leave to replead the Complaint.
If Plaintiff chooses to avail herself of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on which she relies to support any legal claims asserted. Fed.R.Civ.P. 8(a). In addition, the amended complaint must include allegations reflecting how the individuals or entities named as defendants are involved in the allegedly unlawful activity. Finally, Plaintiff is informed that any such amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted)).
VI. PLAINTIFF'S MOTION TO APPOINT COUNSEL
Plaintiff has also submitted a request for appointment of counsel. (Dkt. No. 3.)
As an initial matter, “[a] party has no constitutionally guaranteed right to the assistance of counsel in a civil case.” Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011) (citations omitted). Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors must be carefully considered by the court in ruling upon such a motion. As a threshold matter, the court should ascertain whether the indigent's claims seem likely to be of substance. A motion for appointment of counsel may be properly denied if the court concludes that the plaintiff's “chances of success are highly dubious.” Leftridge, 640 F.3d at 69. If the court finds that the claims have substance, the court should then consider:
[T]he indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in th[e] case why appointment of counsel would be more likely to lead to a just determination.Terminate Control Corp., 28 F.3d at 1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). This is not to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F.Supp. 972, 974 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61).
In the present matter, the Court has recommended dismissal of the action. As such, the Court cannot find that Plaintiff's claims are likely to be of substance. Plaintiff's motion (Dkt. No. 3) is therefore denied.
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith; and it is further
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 3) is DENIED without prejudice; and it is further
RECOMMENDED that the Court DISMISS WITH LEAVE TO AMEND the Complaint (Dkt. No. 1) as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B); 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).