UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
June 12, 2012
CARMENCITA BRUNO, PLAINTIFF,
CITY OF SCHENECTADY, CITY OF SCHENECTADY POLICE DEP'T; THOMAS MATTICE #75, ARRESTING POLICE OFFICER; JOHN DOE #1, ARRESTING POLICE OFFICER; JANE DOE #1, INTAKE POLICE OFFICER AT STATION; JOHN DOE #2, INTAKE POLICE OFFICER AT STATION; JOHN DOE #3, POLICE OFFICER AT HOSPITAL; MICHAEL DELLAROCCO, CITY OF SCHENECTADY FIRE DEP'T CHIEF, JOHN DOE #4, CITY OF SCHENECTADY FIRE DEP'T CAPTAIN; CNTY. OF SCHENECTADY, CNTY. OF SCHENECTADY EMS DEP'T, JOHN / JANE DOE #5, EMP. OF SCHENECTADY CNTY. EMS DEP'T; VILLAGE OF SCOTIA, VILLAGE OF SCOTIA FIRE DEP'T, AND JOHN / JANE DOE, EMPS. OF VILLAGE OF SCOTIA FIRE DEP'T, DEFENDANTS.
The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Carmencita Bruno ("Plaintiff") against the above-captioned individuals and municipalities ("Defendants") pursuant to 42 U.S.C. § 1983 and New York State law, is the Report-Recommendation of United States Magistrate Judge Randolph F. Treece recommending that Plaintiff's Complaint be sua sponte dismissed for failure to state a claim unless she files an Amended Complaint that states a claim upon which relief can be granted. (Dkt. No. 4.) For the reasons set forth below, Magistrate Judge Treece's Report-Recommendation is adopted.
I. RELEVANT BACKGROUND
Generally, in her Complaint, Plaintiff alleges that, after emergency personnel rejected her requests for assistance in rescuing seven dogs from her burning home, an altercation ensued between Plaintiff was emergency personnel, and Plaintiff was arrested. (Dkt. No. 1.) Based on these factual allegations, and liberally construed, Plaintiff's Complaint asserts the following federal claims against Defendants: (1)Defendants used excessive force against her, (2) Defendants falsely arrested Plaintiff; (3) Defendants deprived her of property without due process; and (4) Defendant Police Department failed to implement the proper policies, customs and practices with regard to the rescuing of canine pets during emergencies. (Id.) Plaintiff also asserts the following state common law claims against Defendants: (1) false imprisonment; (2) negligence; (3) negligent supervision; (4) conversion; and (5) battery. (Id.)
By Report-Recommendation dated March 7, 2012, the Magistrate Judge Treece recommended Plaintiff's Complaint be sua sponte dismissed for failure to state a claim (due to her failure to allege facts plausibly suggesting the personal involvement of Defendants in the violations alleged), unless she files an Amended Complaint that states a claim upon which relief can be granted. (Dkt. No. 4.)
Despite being advised of her right to file Objections to the Report-Recommendation, Plaintiff has not done so, and the deadline for the filing of such Objections has expired. (See generally Docket Sheet.)
II. APPLICABLE LEGAL STANDARDS
A. Standard of Review Governing a Report-Recommendation When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify  the portions of the proposed findings, recommendations, or report to which it has an objection and  the basis for the objection." N.D.N.Y. L.R. 72.1(c).*fn1
When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.*fn2
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition.*fn3 Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.*fn4 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.*fn5
After conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
B. Standard Governing a Motion to Dismiss for Failure to State a Claim
It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this tension between permitting a "short and plain statement" and requiring that the statement "show" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the "short and plain" pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F. Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described "showing," the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of "enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal" notice pleading standard "has its limits." 2 Moore's Federal Practice § 12.34[b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak, 629 F. Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S.Ct. 1937');">129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is "plausible," the Supreme Court explained that "[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). "[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here 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." Iqbal, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," id., it "does not impose a probability requirement." Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted).
This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.*fn6
Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.*fn7 Stated more simply, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28 [citations omitted].*fn8 This is especially true where, as here, the plaintiff is an attorney.*fn9
After carefully reviewing all of the papers in this action, including Magistrate Judge Treece's Report-Recommendation, the Court concludes that the Report-Recommendation is thorough, well-reasoned and correct. Magistrate Judge Treece employed the proper legal standards, accurately recited the facts, and reasonably applied the law to those facts. (Indeed, Magistrate Judge Treece's Report-Recommendation would survive even a de novo review.) As a result, the Court adopts the Report-Recommendation for the reasons stated therein.
The Court would add only that Plaintiff's Complaint suffers from the
following six additional pleading defects, which Plaintiff should
correct in any Amended Complaint: (1) the fact that the Complaint
appears to plead facts plausibly suggesting that grounds existed to
arrest her for an offense such as obstructing governmental
administration (see, e.g., Dkt. No. 1, at ¶¶ 25-32),*fn10
which would preclude a claim for false arrest;*fn11
(2) the fact that many of the Complaint's federal claims
appear to allege, at their core, mere negligence, which is not
actionable under the United States Constitution and 42 U.S.C. §
1983;*fn12 (3) the fact that several of Plaintiff's
claims appear barred by the doctrine of qualified immunity because the
Complaint alleges facts plausibly suggesting that one or more of the
individual Defendants on the fire scene reasonably believed that the
dogs in question were already dead by the time Plaintiff arrived home
and requested rescue (Dkt. No. 1, at ¶¶ 26-27); (4) the fact that her
Complaint is unnecessarily long and its paragraphs improperly
rambling, in violation of Fed. R. Civ. P. 8(a)(2) and
10(b);*fn13 (5) the fact that the Complaint
erroneously ceases its sequential numbering of
paragraphs after Paragraph 92 (at the end of the "Facts" section),
reverting to Paragraph "51" (at the start of the "Counts" section; and
(6) the fact that the Complaint erroneously asserts claims by the
"Smoaks" family against the "City of Cookeville, Tennessee" and
"Defendants Hall, McWhorter, Lamb, Bush and Phann," regarding the
Smoaks' family dog "Patton" (Dkt. No. 1, at
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece's Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint be dismissed, and this action closed, unless, within THIRTY (30) days of the date of this Decision and Order, Plaintiff submits an amended complaint which complies with the recommendations made in Magistrate Judge Treece's Report-Recommendation (Dkt. No. 4). In the event that Plaintiff files an amended complaint within thirty (30) days from the date of this Decision and Order, the clerk is directed to return the file to the Magistrate Judge for further review.