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Delarosa v. Serita

United States District Court, Second Circuit

December 20, 2013

RAMON DELAROSA, Plaintiff,
v.
TOKO SERITA, CHRISTOPHER WHITEHAIR, ALISON ANDREWS, Defendants.

RAMON DELAROSA, 11-R-1143, Plaintiff pro se, Mid-State Correctional Facility, Marcy, NY.

ORDER and REPORT-RECOMMENDATION

THÉRÈSE WILEY DANCKS, Magistrate Judge.

The Clerk has sent this pro se complaint together with two applications to proceed in forma pauperis to the Court for review. (Dkt. Nos. 1, 2, and 5.) For the reasons discussed below, I grant Plaintiff's second in forma pauperis application (Dkt. No. 5), deny the first in forma pauperis application (Dkt. No. 2) as moot, and recommend that the action be dismissed without leave to amend.

I. ALLEGATIONS OF THE COMPLAINT

Plaintiff alleges that he was arraigned on a felony complaint on December 17, 2009, in Queens County. (Dkt. No. 1 at 4.) Plaintiff was held on bail and the case was adjourned to December 30, 2009. Id. Plaintiff waived his right to speedy trial until January 13, 2010. Id. Plaintiff alleges that this was not a knowing waiver because his knowledge of English is limited and he was not provided with a translator. Id. at 4-5. Plaintiff alleges that Defendants Christopher Whitehair (a defense attorney), Allison Andrews (a prosecutor), and Toko Serita (a judge) conspired to deprive him of his right to due process and coerced him into pleading guilty. Id. at 1-2, 5-6. Plaintiff requests that the criminal charges against him be dismissed and expunged from his record. Id. at 8. Plaintiff also requests ten million dollars in damages. Id.

II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff has applied to proceed in forma pauperis. (Dkt. No. 5.) A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 7), I find that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.[1]

III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT

28 U.S.C. § 1915(e) (2006) directs that when a person proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that... 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) (2006).

In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief... requires the... 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 shown - that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted).

"In reviewing a complaint... the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

When screening a complaint, the court has the duty to show liberality towards pro se litigants. Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam). "[E]xtreme 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." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

IV. ANALYSIS

A. Claim Against Defendant ...


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