Opinion
6:21-CV-17 (LEK/TWD)
06-14-2021
LINDA J. SHENKO, Plaintiff, v. YORKVILLE VILLAGE, et al., Defendants.
LINDA J. SHENKO Plaintiff, pro se
LINDA J. SHENKO Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge
Linda J. Shenko (“Plaintiff”) filed an action against Yorkville Village, the Town of New Hartford, Oneida County, and several individual law enforcement officers (collectively, “Defendants”). (Dkt. No. 1.) Plaintiff concurrently filed an application to proceed in forma pauperis (“IFP Application”). (Dkt. No. 2). A court may grant 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 IFP Application (Dkt. No. 2), the Court finds Plaintiff meets this standard. Therefore, her IFP Application is granted.
Plaintiff should note that, although her application to proceed in forma pauperis has been granted, she will still be required to pay fees that she may incur in this action, including copying and/or witness fees.
Plaintiff's originally filed complaint is difficult to decipher but appears to assert certain law enforcement officials may have taken thousands of documents related to pending litigation against the Town of New Hartford and various police officers. (See generally, Dkt. No. 1; Dkt. No. 1-1.) Plaintiff, thereafter, asked the Court for several extensions of time to file an amended complaint as a matter of right. (Dkt. Nos. 5, 10, 13, 21.) The Court granted these requests. (Dkt. Nos. 7, 11, 15, 22.) Plaintiff filed her first amended complaint on April 30, 2021, (Dkt. No. 29), and shortly thereafter filed a second amended complaint. (Dkt. No. 32.) However, Plaintiff alleged that her as-filed second amended complaint was “full of disinformation” and that she needed an opportunity to get “a real true complaint” for Defendants to answer. (Dkt. No. 33.) The Court construed Plaintiff's correspondence as a request to submit a corrected second amended complaint and granted the request. (Dkt. No. 34.)
Plaintiff has now filed what has been styled as her third amended complaint on May 10, 2021. (Dkt. No. 36.) Plaintiff's third amended complaint fails to provide sufficient information for the Court to review or for Defendants to have notice of the claims against them. From what the Court can glean, it appears Plaintiff asserts Defendants have stolen some of Plaintiff's paper work, arrested her without cause, and have assaulted her with lasers on multiple occasions. (See generally, Dkt. No. 36.) These actions were taken, according to Plaintiff, due to several notices of claims she has sent against the Town of New Hartford. However, the haphazard collection of allegations does not provide any indication of the causes of action Plaintiff intends to assert or whether this Court has jurisdiction over the action.
The Court is mindful that a pro se litigant's pleadings are held to a less strict standard than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”). However, the current status of the third amended complaint is so convoluted and difficult to interpret that the Court cannot accept it as filed.
Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction . . .;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Fed. R. Civ. P. 8(a). Rule 8's purpose “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)). Moreover, Rule 10 of the Federal Rules of Civil Procedure provides, in part:
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances....Fed. R. Civ. P. 10(b). Rule 10's purpose is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Sandler v. Capanna, 1992 WL 392597, at *3 (E.D. Pa. Dec. 17, 1992) (citation omitted).
A complaint that does not comply with these Rules “presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims, ” and may properly be dismissed by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). “Dismissal, however, 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.” Artuz, 1998 WL 832708, at *2 (internal quotation marks omitted).
Here, the Court recommends the third amended complaint be dismissed because it is not acceptable under Rules 8 and 10 of the Federal Rules of Civil Procedure and Plaintiff's claims are entirely unclear. However, considering her pro se status, the Court further recommends Plaintiff be given a final opportunity to amend the complaint to comply with the basic pleading requirements set forth above. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).
Plaintiff previously filed what the Court construed as a motion for joinder. (Dkt. No. 28.) Because the Court is recommending granting Plaintiff a final opportunity to amend, the Court denies this request as moot and directs Plaintiff to name all necessary defendants in any amended complaint.
Plaintiff has also filed an application for appointment of counsel. (Dkt. No. 48.) However, Plaintiff failed to demonstrate why she is entitled to appointment of counsel at this time and it is unclear if she has attempted to secure pro bono counsel related to this action. Id. (noting that she has yet to contact Jesse Ryder regarding representation). As such, the Court denies Plaintiff's request as premature. See Terminate Control Corp. v. Horowitz, 28 F.2d 1335 (2d Cir. 1994). Plaintiff may renew her application for appointed counsel if she can demonstrate she has attempted to find pro bono counsel on her own and if she can demonstrate why she is entitled to such assistance.
Finally, Plaintiff filed a motion for an injunction and sanctions related to missing documents. (Dkt. No. 39.) However, because the Court recommends dismissing Plaintiff's third amended complaint with leave to replead, the Court recommends denying this motion at this time with leave to renew when she files an amended complaint that satisfies the Court's pleading standards.
ACCORDINGLY, it is
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 to appoint counsel (Dkt. No. 43) is DENIED with leave to renew; and it is further
ORDERED that Plaintiff's motion for joinder (Dkt. No. 28) is DENIED as moot; and it is further
RECOMMENDED that Plaintiff's motion for injunctive relief (Dkt. No. 39) be DENIED with leave to renew; and it is further
RECOMMENDED that Plaintiff's third amended complaint (Dkt. No. 36) 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 a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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).