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McFadden v. Ortiz

United States District Court, Second Circuit

April 26, 2013

ALEXANDER McFADDEN, Plaintiff,
v.
JOSE D. ORTIZ, Executive Officer Chase JP Morgan Chase & CO., and JAMES SIMON, Manager Chase JP Morgan Chase & Co., Defendants.

ALEXANDER McFADDEN, 11-A-4995 Southport Correctional Facility, Pine City, New York, Plaintiff pro se.

JOSE D. ORTIZ, Executive Officer for Chase JP Morgan Chase & CO., Houston, Texas, JAMES SIMON, Manager for Chase JP Morgan Chase & CO., New York, New York.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff pro se Alexander McFadden ("McFadden"), an inmate at the Southport Correctional Facility ("SCF"), filed this action pursuant to 42 U.S.C. § 1983. In his complaint, Plaintiff appears to allege that Defendants, two executives of Chase JP Morgan Chase & Co. ("Chase"), violated his constitutional rights through conduct that, in some way, involved a bank account. See Dkt. No. 1 at § 4.

On August 7, 2012, Magistrate Judge Andrew T. Baxter issued an Order and Report-Recommendation, recommending that the Court dismiss Plaintiff's complaint in its entirety with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt. No. 5. Currently before the Court are Plaintiff's objections to Magistrate Judge Baxter's August 7, 2012 Order and Report-Recommendation.

II. BACKGROUND

In his Order and Report-Recommendation dated August 7, 2012, Magistrate Judge Baxter recommended that Plaintiff's motion to proceed in forma pauperis ("IFP") should be denied by the Court and, upon review of the complaint, that this action be dismissed in its entirety with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt. No. 5 at 9. Further, Magistrate Judge Baxter recommended that if the Court approves his report, the Court should certify that any appeal from this matter will not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See id.

Regarding Plaintiff's complaint, Magistrate Judge Baxter's Order and Report-Recommendation recommends that because there is no indication that either Defendant acted under "color of state law, " and because there are no allegations that either or both Defendants "conspired" with any state actors to bring this action under section 1983, Plaintiff's complaint should be dismissed. See Dkt. No. 5 at 5.

Regarding Plaintiff's claim that Defendants violated New York Penal Law by offering false documents for filing, tampering with public records, and falsifying business records, Magistrate Judge Baxter recommended that because there is no private right of action to enforce either state or federal criminal statutes, Plaintiff is barred from bringing a claim to enforce these provisions of the New York State Criminal Law. See Dkt. No. 5 at 6.

Accordingly, Magistrate Judge Baxter recommended this Court hold that, due to Plaintiff's failure to state a claim under 42 U.S.C. § 1983 upon which relief can be granted, combined with the courts inability to determine what venue might be appropriate, Plaintiff's motion for IFP should be denied, and Plaintiff's complaint should be dismissed in its entirety with prejudice pursuant 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt. No. 5 at 9.

In his "objections" to Magistrate Judge Baxter's Order and Report-Recommendation, Plaintiff simply provides the Court with language from various cases discussing various types of objections and the Court's authority to review unpreserved errors. See Dkt. Nos. 14, 15.

III. DISCUSSION

A. Review of a magistrate ...


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