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recommending that the Court impose a bar order, given that the matter was “the sixth action [the p]laintiff ha[d] filed with this Court in recent years”; the plaintiff's prior five actions had been dismissed, two on the ground that they were frivolous; and the plaintiff had been warned that “her unwarranted litigiousness is bordering on vexatiousness” and that continued meritless submissions may result in the issuance of an order “to show cause as to why the Court should not issue an order barring . . . future filings without prior leave of the Court”
Summary of this case from Lewis v. Essex Cnty.Opinion
5:22-cv-994 (BKS/TWD)
10-04-2022
MEGAN A. ROGERS, Plaintiff, v. RYAN MCMAHON, et al., Defendants.
MEGAN A. ROGERS, Plaintiff, pro se
MEGAN A. ROGERS, Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent this pro se Complaint together with an application to proceed in forma pauperis (“IFP Application”) and a motion for the appointment of counsel filed by Megan A. Rogers (“Plaintiff”) to the Court for review. (See Dkt. Nos. 1, 2, 3.) Having reviewed Plaintiff's IFP Application, the undersigned GRANTS the application for purposes of this review. (See Dkt. No. 2.) Plaintiff's motion for the appointment of counsel is DENIED for failure to contact attorneys in an effort to obtain counsel. (Dkt. No. 3.) The undersigned now considers the sufficiency of the allegations set forth in the Complaint under 28 U.S.C. § 1915(e). For the reasons discussed below, the undersigned recommends that the Court DISMISS Plaintiff's Complaint in its entirety with leave to amend. (Dkt. No. 1.)
I. BACKGROUND
On September 21, 2022, Plaintiff commenced this action against Ryan McMahon in his capacity as the Onondaga County Executive, City Planning, and the Onondaga County Aquarium. (See Dkt. No 1.) Plaintiff's Complaint consists of three different form complaints, which purport to assert actions under: (1) Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); (2) 42 U.S.C. § 1983; and (3) the Age Discrimination in Employment Act, 29 U.S.C. § 626(c)(1). See id.
This is the sixth action Plaintiff has filed with this Court in recent years. See Rogers v. Benedict, et al., Case No. 5:22-cv-801-MAD-TWD (N.D.N.Y. 2022), Dkt. No. 7 (recommending that the Court dismiss Plaintiff's Complaint in its entirety for failure to state a claim and for asserting frivolous claims); Rogers v. U.S. Dep't of the Treasury, No. 5:21-CV-1351, 2022 WL 3226349, at *1 (N.D.N.Y. Aug. 10, 2022) (dismissing complaint without leave to amend as frivolous); Rogers v. Pfizer et al., Case No. 5:21-cv-176-GLS-TWD (N.D.N.Y 2021), Dkt. No. 16 (dismissing complaint without leave to amend for failure to state a claim); Rogers v. CPS, No. 5:20-CV-0075 (LEK) (ATB), 2020 WL 2059824, at *4 (N.D.N.Y. Apr. 29, 2020) (dismissing several claims with prejudice, one claim without prejudice and leave to amend, and terminating several defendants); Rogers v. Clinton, No. 5:19-CV-175 (LEK) (ATB), 2019 WL 3454099, at *1 (N.D.N.Y. July 31, 2019) (dismissing compliant without leave to amend for lack of subject matter jurisdiction); see also Rogers v. U.S. Dep't of the Treasury, No. 5:21-CV-1351 (DNH) (ML), 2022 WL 899771, at *6 (N.D.N.Y. Mar. 28, 2022), report and recommendation adopted, 2022 WL 1184585 (N.D.N.Y. Apr. 21, 2022) (cautioning Plaintiff “that her unwarranted litigiousness is bordering on vexatiousness,” and if she continues to “file meritless submissions, she will be directed to show cause as to why the Court should not issue an Order barring her from future filings without prior leave of the Court”); Rogers v. Child Protective Servs., No. 201725, 2020 WL 7040960, at *1 (2d Cir. Sept. 23, 2020) (dismissing appeal because it lacked an arguable basis in either law or fact); Rogers v. Clinton, No. 19-2632, 2019 WL 6218814, at *1 (2d Cir. Oct. 30, 2019) (same).
Similar to the other actions initiated by Plaintiff in this Court, “[t]he ‘facts' of this action are stated in a cursory and random manner in various parts of the complaint, and there are few full sentences.” Rogers v. Clinton, No. 5:19-CV-175 (LEK) (ATB), 2019 WL 3469462, at *2 (N.D.N.Y. Apr. 1, 2019), report and recommendation adopted, 2019 WL 3454099 (N.D.N.Y. July 31, 2019). Through the first of her three form complaints, purportedly asserted under Bivens, Plaintiff names “Ryan McMahon/City Planning” as defendants. (See Dkt. No. 1 at 1.) In support of her Bivens complaint, Plaintiff advances no factual allegations. See id. at 1-3. Rather, she provides the following information:
“FIRST CAUSE OF ACTION
85 Million
SECOND CAUSE OF ACTION
100 Million
THIRD CAUSE OF ACTION
140 Million”(See Dkt. No. 1 at 2.)
Through the second of her three form complaints, purportedly asserted under 42 U.S.C. § 1983, Plaintiff appears to name as a defendant Ryan McMahon in his official capacity as the Onondaga County Executive. See id. at 4. In support of her Section 1983 complaint, Plaintiff asserts no facts and lists no causes of action. See id. at 4-5.
Through the third and final form complaint, purportedly asserted under the Age Discrimination in Employment Act (“ADEA”), Plaintiff names as defendants “Ryan McMahon/City Planning” and the Onondaga County Aquarium. See id. at 7. Plaintiff claims these defendants failed to promote her, subjected her to unequal terms and conditions of employment, retaliated against her, and stole bonds. See id. Plaintiff offers the following information in support of her ADEA complaint:
“Stolen Bonds
17 C - Tax Gum [sic]
Charitable deposits to government and community
When and where did I sign this?
‘Open Network'”See id. at 8. Plaintiff advances no specific or enumerated causes of action in support of her ADEA complaint. See id. at 6-10.
The final six pages of Plaintiff's Complaint include a document titled “Additional Information,” three typed pages, and two pages of a document titled “Adult & Continuing Education Courses Outline.” See id. at 11-16.
II. STANDARD OF REVIEW
This Court must conduct an initial review of complaints filed in forma pauperis. 28 U.S.C. § 1915(e)(2)(B). When conducting this review, “the court shall dismiss the case at any time if the court determines . . . the action . . . is frivolous or malicious . . . [or] fails to state a claim on which relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021). The Court must accordingly construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
“An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “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). “[T]he 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.
III. SUFFICIENCY OF THE COMPLAINT
Construing Plaintiff's entire Complaint liberally, Sealed Plaintiff, 537 F.3d at 191, the undersigned concludes she has failed to state a claim for relief. See 28 U.S.C. § 1915(e)(2)(B)(ii). Moreover, many of Plaintiff's claims appear to be frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). The undersigned accordingly recommends that the Court dismiss Plaintiff's Complaint in its entirety with leave to amend.
First, Plaintiff has failed to state a claim for relief. See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff has failed to adequately set forth sufficient factual content to allow this Court to reasonably infer that any of the Defendants are liable for the conduct alleged. See Iqbal, 556 U.S. at 678. She has failed to set forth a short and plain statement stating who did what to her, whey they did it, and how she was injured. See id.; see also Fed.R.Civ.P. 8(a)(2). Absent these basic details, Plaintiff's Complaint has failed to give Defendants fair notice of what her claims are and the grounds upon which they rest. See Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2). Accepting the facts alleged in Plaintiff's entire Complaint as true and construing all reasonable inferences in her favor, Hernandez, 18 F.3d at136, the Court is left with “an unadorned, the-defendant-harmed-me accusation.” See Iqbal, 556 U.S. at 678. The undersigned accordingly recommends that the Court dismiss Plaintiff's Complaint for failure to state a claim. See id.; see also 28 U.S.C. § 1915(e)(2)(B)(ii).
Second, Plaintiff failed to state causes of action in conjunction with her Section 1983 and ADEA form complaints. (See Dkt. No. 1 at 4-10.) Plaintiff's second form complaint, apparently asserting a Section 1983 claim, only names Ryan McMahon as a defendant in his official capacity as the Onondaga County Executive. See id. at 4. It advances no factual allegations, and names no causes of action. See id. at 4-5. Similarly, Plaintiff's third form complaint, apparently asserting an ADEA claim, advances no specific or enumerated cause of action against Defendants. See id. at 10-13. Rather, it names “Ryan McMahon/City Planning” and the Onondaga County Aquarium as defendants and claims they engaged in various conduct, including stealing bonds. See id. at 7. Plaintiff has accordingly failed to state a claim for relief through her second and third form complaints. See Fed.R.Civ.P. 12(b)(6); see also 28 U.S.C. § 1915(e)(2)(B)(ii). The undersigned recommends the Court dismiss Plaintiff's second and third form complaints for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Third, Plaintiff's Bivens and Section 1983 claims are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff advances no allegation that any of the Defendants are federal or state actors. (See Dkt. No. 1.) “To state a claim under § 1983, a plaintiff must allege that defendants violated plaintiff's federal rights while acting under color of state law.” O'Donoghue v. United States Soc. Sec. Admin., 828 Fed.Appx. 784, 787 (2d Cir. 2020). Similarly, “to state a Bivens claim, a plaintiff must allege that he has been deprived of a constitutional right by a federal agent acting under color of federal authority and must allege that the individual defendant was personally involved in the constitutional violation.” Id. Plaintiff has failed to allege any of the Defendants deprived her of federal or constitutional rights while acting under color of state or federal authority. (See Dkt. No. 1.) This dispositive defense appears on the face of Plaintiff's Complaint. See id. Plaintiff's Bivens and Section 1983 claims are accordingly frivolous. See Livingston, 141 F.3d at 437 (“A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.”). The undersigned recommends that the Court dismiss Plaintiff's Bivens and Section 1983 claims on the grounds that they are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
In sum, Plaintiff has failed to adequately state a claim for relief, and her Bivens and Section 1983 claims are frivolous. (See Dkt. No. 1; see also 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii).) Because this appears to be the sixth meritless action Plaintiff has initiated in this Court, the undersigned recommends that the Court consider imposing a bar Order under 28 U.S.C. § 1651(a). See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.”); see, e.g., Rogers, 2022 WL 899771, at *6 (cautioning Plaintiff she may be subject to a future bar Order if she continued to file meritless actions).
IV. CONCLUSION
For the foregoing reasons, the undersigned recommends that the Court dismiss Plaintiff's Complaint in its entirety with leave to amend, and consider imposing a bar Order under 28 U.S.C. § 1651(a). (Dkt. No. 1.) Plaintiff's IFP Application is GRANTED for purposes of this review. (Dkt. No. 2.) Plaintiff's motion for the appointment of counsel is DENIED. (Dkt. No. 3.)
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED solely for purposes of initial review; and it is further
ORDERED that Plaintiff's motion for the appointment of counsel (Dkt. No. 3) is DENIED; 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); and it is further
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii).
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. 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).
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).
ORDER
Gary L. Sharpe Senior District Judge
The above-captioned matter comes to this court following an Order and Report-Recommendation (R&R) by Magistrate Judge Therese Wiley Dancks, duly filed June 9, 2021. (Dkt. No. 14.) Following fourteen days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.
Plaintiff Pro Se Megan Rogers filed a document in response to the R&R. (Dkt. No. 15.) But that document, much like the amended complaint, is not cogent, and it makes no specific objection to the R&R. The court has reviewed the R&R for clear error, see Almonte v. N.Y. State Div. of Parole, No. Civ. 904CV484, 2006 WL 149049, at *5-6 (N.D.N.Y. Jan. 18, 2006), and finds none. Accordingly, it is hereby
ORDERED that the Order and Report-Recommendation (Dkt. No. 14) is ADOPTED in its entirety; and it is further
ORDERED that plaintiff's amended complaint (Dkt. No. 13) is DISMISSED; and it is further
ORDERED that the clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Order to plaintiff in accordance with the Local Rules of Practice.
IT IS SO ORDERED.