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Richard A. Weston, Sr. v. Dan Patrick Sullivan

March 1, 2013

RICHARD A. WESTON, SR. PLAINTIFF,
v.
DAN PATRICK SULLIVAN, ET AL., DEFENDANTS .



The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge

DECISION and ORDER

I. Background

Plaintiff filed the original complaint in this action on December 28, 2012, together with a motion for leave to proceed in forma pauperis ("IFP") and a motion for appointment of counsel. (Dkt. Nos. 1-2). After reviewing the complaint and the two motions, I ordered plaintiff to either pay the filing fee or submit additional information to the court regarding his finances for purposes of the IFP motion. (Dkt. No. 5). In the alternative, I gave plaintiff the opportunity to pay the filing fee. (Id.) I also gave plaintiff the opportunity to file an amended complaint, clarifying his constitutional claims. (Id.)

On January 22, 2013, plaintiff paid the filing fee as an alternative to submitting the additional financial information, and he was granted an extension of time to file the amended complaint. (Dkt. Nos. 6 & Text Order dated 1/3/13). On February 22, 2013, plaintiff filed his amended complaint, and the clerk has sent it to me for my review, pursuant to my January 3, 2013 order. (Dkt. Nos. 5, 7).

II. Complaint and Amended Complaint

A. Original Complaint

Plaintiff's original complaint seemed to allege that he was denied the ability to obtain a "concealed carry" pistol permit for improper reasons. Plaintiff alleged that he sold a .380 pistol on August 24, 2011. (Complaint ("Compl.") ¶ 4; Facts) (Dkt. No. 1). Plaintiff stated that he went to get an amendment to his pistol license and spoke with defendant John Doe. (Id.) Defendant Doe told plaintiff that for twenty dollars, his license would be updated, but when plaintiff requested a "concealed carry" permit, defendant Doe told him "[i]n an unbelievable tirade," that "no cc are issued under any circumstances." (Id.) Plaintiff alleged that after he tried repeatedly to "clear up" the matter, defendant Doe threatened that he "would have busted [him] on 4 felony stops." Plaintiff stated that as he was leaving the office he "noticed" defendant Dan Sullivan*fn1 seated by the inside entrance of the office. (Id.)

Plaintiff then listed his "Causes of Action" in the original complaint. These "Causes of Action" alleged that defendant Doe's "racial statements" and his misconduct "must be challenged." (Compl. ¶ 5). Plaintiff claimed that "all" his character references received a "cc" after the 2008 Supreme Court ruling.*fn2 Plaintiff's second cause of action stated that his due process rights were violated, together with his right to "equal treatment" and his right to be free from unfair treatment or discrimination. (Compl. ¶ 5; Second Cause of Action). In his third cause of action, plaintiff claimed that John Doe told plaintiff that his "boss . . . (Mr. Sullivan)" did not issue concealed carry permits. (Compl. ¶ 5; Third Cause of Action). However, plaintiff alleged that he determined this was not true. (Id.) Plaintiff claimed that defendant Doe's behavior was a violation of city, county, and state codes of conduct. (Id.)

B. Court's January 3, 2013 Order

In my January 3, 2013 Order, reading the plaintiff's complaint with great liberality, I found that plaintiff could have been trying to state a due process as well as an equal protection claim. (Dkt. No. 5 at 5-6). I also pointed out that the only named defendant, "Dan Sullivan" appeared only to have been seen sitting by the side entrance of the office when plaintiff was speaking with John Doe, presumably overhearing the conversation. The only conduct attributable to Mr. Sullivan was that defendant Doe told plaintiff that his boss ("Dan Sullivan") did not issue concealed carry permits. (Compl. ¶ 5; Third Cause of Action). The only statement attributed to defendant John Doe was that he "would have busted [plaintiff] on 4 felony stops."

In my January 3, 2013 order, I noted that a plaintiff must allege a defendant's direct or personal involvement in the alleged constitutional deprivations.*fn3 Farrell v. Burke, 449 F.3d 470, 474 (2d Cir. 2006).

Because plaintiff's allegations were unclear, I afforded him the opportunity to amend his complaint to be more specific in his claims. Plaintiff claimed that John Doe's "racial statements and misconduct" must be challenged. However, verbal abuse, including threatening language and gestures, does not amount to a constitutional violation. Bender v. City of New York, No. 09 Civ. 3286, 2011 WL 4344203, at *8 (S.D.N.Y. Sept. 14, 2011) (citing Smith v. Fields, No. 95 Civ. 8374, 2002 WL 342620, at *5 (S.D.N.Y. March 4, 2002)); La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-738, 2009 WL 2868231, at *3 (N.D.N.Y. Sept. 1, 2009) (citations omitted); Gill v. Hoadley, 261 F. Supp. 2d 113, 129 (N.D.N.Y. 2003).

C. The Amended Complaint

Plaintiff now names the "Pistol Permit Licensing Officer for Oneida County;" and John Doe - Employee of the County Assigned to Pistol Permit Office Under Direction of Dan Sullivan. (Amended Complaint ("AC") at p.1) (Dkt. No. 7). Based upon the language that follows in the amended complaint, the court ...


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