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Cisnevas-Garcia v. Shipman

August 31, 2010


The opinion of the court was delivered by: Scullin, Senior Judge



The Clerk of the Court has sent Plaintiff Jamie Cisnevas-Garcia's complaint to the Court for its review, along with Plaintiff's motions for appointment of counsel, an investigator, and a translator, and his requests to stay deportation, set a trial date, and schedule oral argument. Plaintiff, who is currently confined at Cayuga County Jail, seeks leave to proceed in forma pauperis and has not paid the filing fee in this action.


A. In Forma Pauperis Application and Sufficiency of the Complaint

After reviewing the information that Plaintiff provided in his in forma pauperis application, the Court concludes that he meets the financial criteria for commencing this action in forma pauperis. Therefore, the Court must now consider the sufficiency of the allegations that Plaintiff has set forth in his complaint in light of 28 U.S.C. § 1915(e).

Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) 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); see also 28 U.S.C. § 1915A.*fn1 Thus, although the court has the duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond, . . ." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted), the court also has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis.*fn2

When reviewing a complaint, the court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading that sets forth a claim for relief shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 "'is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, . . . prepare an adequate defense'" and determine whether the doctrine of res judicata is applicable. Hudson v. Artuz, No. 95 CIV. 4768, 1998 WL 832708, *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) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977))) (other citation omitted).

A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is 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, 129 S.Ct. 1937, 1949 (2009) (citation omitted). Although the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing [Twombly, 550 U.S.] at 555, 127 S.Ct. 1955). Thus, "where 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 'show[n]' -- 'that the pleader is entitled to relief.'" Id. at 1950 (quoting Fed. Rule Civ. Proc. 8(a)(2)).

B. Plaintiff's Claims

In his complaint, Plaintiff seeks redress for the alleged violation of his right to access the courts. Plaintiff states that he "is a federal inmate in need for information of federal law." See Dkt. No. 1 at 2. According to Plaintiff, his access to the law library at the Onondaga County Correctional Facility, where he was confined when he commenced this action, was extremely limited. See id.*fn3 Plaintiff states that he has "two open cases, [ ] 09-2406 and 8:09-CR-0385," and claims that he "has in fact been denied his constitutional right to access to the courts." See id. Plaintiff seeks injunctive relief and compensatory damages. See id. at 4.

At the outset, the Court notes that Plaintiff identifies this action as one arising under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA"). See Dkt. No. 1 at 1. The FTCA constitutes a waiver of the Government's sovereign immunity from suit for claims of property damage or personal injury caused by the "negligent or wrongful act or omission" of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).*fn4 Claims against the government must be presented to the appropriate federal agency for resolution prior to seeking judicial relief. See 28 U.S.C. § 2675(a).

Here, Plaintiff's claims regarding his access to the courts during his confinement in a county jail, asserted against three individuals identified as employees of Onondaga County, are not cognizable under the FTCA. However, reading the complaint in the light most favorable to Plaintiff and with due regard to his status as a pro se litigant, the Court has considered whether the allegations of the complaint are sufficient to state a claim pursuant to 28 U.S.C. § 1983 for the alleged violation of Plaintiff's Sixth Amendment right to access the courts.

In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held that access to the courts is a fundamental right that "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828 (footnote omitted). Interpreting Bounds, the Supreme Court stated in Lewis v. Casey, 518 U.S. 343 (1996), that Bounds did not create an "abstract, freestanding right to a law library or legal assistance[.]" Id. at 351. Additionally, a law library is only one way for prison officials to provide inmates with access to the courts. See Bounds, 430 U.S. at 830-31. Thus, if prison officials afford an inmate counsel, there is no constitutional requirement that they also afford him ...

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