Opinion
1:10-cv-1386 (GLS/RFT).
May 6, 2011
Robert J. Simmons, II, Pro Se, Castleton, NY, Attorney for the plaintiff.
MEMORANDUM-DECISION AND ORDER
Robert J. Simmons, II brings this action under 42 U.S.C. § 1983 alleging violations of his constitutional rights. (See Compl., Dkt. No. 1.) In a Report Recommendation and Order (R R) filed December 21, 2010, Magistrate Judge Randolph F. Treece, after granting Simmons in forma pauperis status, recommended dismissal of Simmons's complaint under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim on which relief may be granted. (See Dkt. No. 4.) Pending are Simmons's objections to the R R. (Dkt. No. 6.) For the reasons that follow, the R R is adopted and Simmons's complaint is dismissed.
The Clerk is directed to append the R R to this decision, and familiarity therewith is presumed.
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
Judge Treece recommended that the claims asserted by Simmons are subject to dismissal due to (1) the lack of any allegation that the named defendants — Simmons's landlords — acted under color of state law; and (2) the failure to specify what civil right he is seeking to vindicate and how it was actually violated. (See R R at 2-3, Dkt. No. 4.) In response, Simmons offers no specific objections to Judge Treece's findings. Instead, with some further elaboration, Simmons reasserts the same allegations contained in his complaint. (See generally Pl. Objections, Dkt. No. 6.) Therefore, upon review of the R R for clear error, the court finds none and adopts Judge Treece's recommendations.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Treece's Report Recommendation and Order (Dkt. No. 4) is ADOPTED and Simmons's complaint is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide copies of this Memorandum-Decision and Order to the parties by regular and certified mail.
IT IS SO ORDERED.
REPORT RECOMMENDATION and ORDER
The Clerk has sent to the Court for review a civil rights Complaint filed by pro se Plaintiff Robert J. Simmons, II. Dkt. No. 1, Compl. Simmons has also filed a Motion to Proceed In Forma Pauperis. Dkt. No. 2.II. DISCUSSION A. In Forma Pauperis Application
Turning first to Simmons's Motion to Proceed with this Action In Forma Pauperis, after reviewing the entire file, the Court finds that Plaintiff may properly proceed with this matter in forma pauperis.
B. Plaintiff's Complaint
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action or appeal (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, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed with his action.In his brief pro se Complaint, Plaintiff complains of an altercation he had with his landlord, whom he believes has violated his constitutional rights and seeks redress through 42 U.S.C. § 1983, which "establishes a cause of action for `the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." German v. Fed. Home Loan Mortgage Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (quoting Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) 42 U.S.C. § 1983); see also Myers v. Wollowitz, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that" § 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights").
Plaintiff's § 1983 action is problematic on multiple fronts. First, he fails to state a cognizable cause of action for which relief can be granted. Though he generally asserts his civil/constitutional rights have been violated, he fails to specify the nature of such right. Instead, he merely asserts he is the victim of a hate crime. The second infirmity with the Complaint is the fact that neither of the named Defendants act under color of state law. It is well-settled that parties may not be held liable under § 1983 unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994) (noting state action requirement under § 1983); Wise v. Battistoni, 1992 WL 280914, at *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). State action is an essential element of any § 1983 claim. See Gentile v. Republic Tobacco Co., 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (citing Velaire v. City of Schenectady, 862 F. Supp. 774, 776 (N.D.N.Y. 1994) (citation omitted). There is no allegation that Defendants acted under color of state law with regard to the rent dispute.
In this regard, it appears that § 1983 is not the proper vehicle for Plaintiff to seek judicial review of the claims herein. Accordingly, to the extent Plaintiff is seeking to remedy some constitutional violation, his Complaint fails to state a cause of action to which relief can be provided and should therefore be dismissed. WHEREFORE, it is hereby
ORDERED, that Plaintiff's in Forma Pauperis Application (Dkt. No. 2) is granted; and it is further
RECOMMENDED, that the entire Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted; and it is further
ORDERED, that the Clerk serve a copy of this Report Recommendation and Order on Plaintiff by certified mail.
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), 6(e).
IT IS SO ORDERED.
Date: December 21, 2010 Albany, New York