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Tommy Walker, Iii v. Jerry Briggs

November 22, 2011


The opinion of the court was delivered by: Mae D'Agostino, U.S. District Judge



On or about August 10, 2011, pro se Plaintiff Tommy Walker, III, who is presently incarcerated, filed a pleading styled as a motion for return of property, pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure.*fn1 *fn2 See Dkt. No. 1. Plaintiff seeks the return of property allegedly seized by the Utica Police Department during an illegal search conducted on November 18, 1988. At the time of filing, Plaintiff did not pay the filing fee, nor did he file an application to proceed in forma pauperis ("IFP"). Accordingly, the Court ordered that Plaintiff either pay the $350.00 filing fee in full, or provide the Clerk of the Court with a signed IFP application and inmate authorization form within thirty (30) days from the date of the Court's Decision and Order, issued on September 15, 2011. See Dkt. No. 2. In compliance with that directive, on October 24, 2011, Plaintiff filed an IFP application along with a signed inmate authorization.*fn3 See Dkt. Nos. 3, 4. On that date, Plaintiff also filed a document he has identified as a "motion of clarification." See Dkt. No. 5. Upon review of Plaintiff's submissions, the Court has determined that Plaintiff's application to proceed IFP will be granted, but that this action will be dismissed.


A. In Forma Pauperis Application

After a careful review of Plaintiff's IFP application, the Court finds that Plaintiff qualifies for IFP status. As such, Plaintiff's request to proceed in forma pauperis in this action is granted.

B. Standard of Review

Since the Court has found that Plaintiff meets the financial criteria for commencing this action in forma pauperis, the Court must consider the sufficiency of the allegations set forth in his pleading in light of 28 U.S.C. § 1915(e). Section 1915(e) 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 -- . . . (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)(2)(B). Thus, the Court has a gatekeeping responsibility to determine whether a complaint may be properly maintained in this District before it may permit a plaintiff to proceed with an action in forma pauperis. See id.

In deciding whether a complaint states a colorable claim, a court must extend a certain measure of deference towards pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and extreme 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, see Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). There is, nonetheless, an obligation on the part of the court to determine that a claim is not frivolous before permitting a plaintiff to proceed.*fn4 See Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may dismiss as frivolous a complaint sua sponte notwithstanding the fact that the plaintiff has paid the statutory filing fee); Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (holding that a district court has the power to dismiss a case sua sponte for failure to state a claim).

When reviewing a complaint under section 1915(e), 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 [and] prepare an adequate defense.'" 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 Atlantic 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)).


A. Summary of Plaintiff's Claims

Instead of a single integrated pleading, Plaintiff filed his original motion, followed by the filing of a "motion for clarification," which the Court will treat as an amended pleading.*fn5 In his pro se motion, Plaintiff contends that the Utica Police Department conducted an illegal search of his vehicle on November 18, 1988, without a search warrant. See Dkt. No. 1 at ¶ 1. During the course of that search, the law enforcement agents allegedly seized $638.00 in cash, electronic equipment, airplane tickets, personal clothing, Plaintiff's vehicle, and other items of minimum value. See id. Plaintiff claims that he has contacted the Oneida County District Attorney's Office on several occasions for the return of his seized property, to no avail. See id. at ¶ 2. ...

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