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Brandon v. New York State Division of Parole; Department of Correction; Nassau County Correction; Rikers

December 27, 2011

BRANDON MCFADDEN, PLAINTIFF,
v.
NEW YORK STATE DIVISION OF PAROLE; DEPARTMENT OF CORRECTION; NASSAU COUNTY CORRECTION; RIKERS ISLAND; NICOLE CANTO; IRWIN DAVIES, DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

Plaintiff, currently incarcerated at Rikers Island, brings this pro se action, pursuant to 42 U.S.C. § 1983, alleging that his "double je[o]pardy rights" have been violated by defendants. Plaintiff's request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915 solely for the purpose of this Order and plaintiff is afforded thirty days to file an amended complaint as set forth below.

BACKGROUND

It appears that plaintiff alleges that the defendants have made a record-keeping error and assigned him a DIN (Department Identification Number used by the New York State Department of Corrections) from a sentence that he has served. He alleges that this violates his double jeopardy rights and that he learned of the error on August 10, 2011.

The complaint alleges the following facts:

While I was waiting on my appeal, I was sent a pi[e]ce of paper work form parole stating that I maxed out on my 06R1566 Din number. Now after I got a direct appeal, case dismissed from the 09 number when I was release how am I given back a number that I maxed out on that is a violation of my double je[o]pardy rights and since my reversal I've I explain to parole about the situ[a]tion and continue to report to parole for 12 months without a violation. Parole never straighten this problem out which I explain to them numerous times, Department of Correction also intwined [sic] there self into the situ[a]tion when they merged with parole and incarcerated me on charges that I am out on bail on Riker's Island, Nassau County which are correctional facility that I am being held in both. Complaint at ¶ II (D). Plaintiff seeks two million dollars in damages for mental anguish and pain and suffering. Complaint at III.

STANDARD OF REVIEW

Under 28 U.S.C. § 1915A, a district court "shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner's complaint sua sponte if the complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief."

Id.; Liner v. Goord, 196 F.3d 132, 134 & n.1 (2d Cir. 1999) (noting that under PLRA, sua sponte dismissal of frivolous prisoner complaints is not only permitted but mandatory).

Further, under 28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that the action is "(i) 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." A complaint fails to state a claim on which relief can be granted if, taking all allegations contained in the complaint to be true, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004).

However, a court must construe a pro se litigant's pleadings liberally, see Chavis v. Chappius, 618 F.3d 162, 171 (2d Cir. 2010), especially when those pleadings allege civil rights violations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008). A pro se complaint should not be dismissed without granting a pro se plaintiff leave to amend "at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam).

Although courts must read pro se complaints with "special solicitude" and interpret them to raise the "strongest arguments that they suggest," Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006) (internal quotation marks omitted), a complaint must plead 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, 556 U.S. 662, 678, (2009) (citation omitted). While "detailed factual allegations" are not required, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Twombly, 550 U.S. at 555). Similarly, a complaint is insufficient to state a claim "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557).

DISCUSSION

A.No Constitutional ...


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