United States District Court, N.D. New York
GARY J. PETT, Plaintiff,
JOHN H. CRANDALL, Acting Family Court Judge; MARK R. ROSE, ESQ., Poor Person Attorney, Defendants.
GARY J. PETT Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
ANDREW T. BAXTER, Magistrate Judge.
The Clerk has sent to the court a civil rights complaint, together with an application to proceed in forma pauperis ("IFP"), filed by pro se plaintiff, Gary J. Pett. (Dkt. Nos. 1, 2).
I. IFP Application
A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). This court agrees, and finds that plaintiff is financially eligible for IFP status.
In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines 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. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim 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)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint under the above standards.
In this civil rights complaint, plaintiff alleges due process violations in connection with a Herkimer County Family Court proceeding. (Compl.) (Dkt. No. 1). Plaintiff, who is now incarcerated on apparently unrelated matters, alleges that defendant Crandall should not have presided over plaintiff's Family Court Petition because he was the former Herkimer County District Attorney who was involved in plaintiff's criminal "matters." (Compl. ¶ 6; Facts). Plaintiff claims that he reminded defendant Crandall about this conflict of interest when plaintiff "appeared" by telephone in the matter on "September 26, 2014."
Plaintiff also claims that defendant Crandall assigned defendant Mark Rose, Esq. as plaintiff's counsel, but that defendant Rose never spoke to plaintiff. Plaintiff claims that defendant Crandall held a hearing on October 10, 2013 and dismissed plaintiff's "Petition, " even though plaintiff never met with his attorney, defendant Rose. ( Id. ) Finally, plaintiff alleges that he wrote several letters to the Herkimer County Family Court and to the Herkimer County Attorney to let them know that it was difficult for plaintiff to hear the proceedings when he was appearing by telephone.
The complaint contains three causes of action, each alleging Fourteenth Amendment Due Process violations. Plaintiff alleges that defendant Crandall violated his due process rights by hearing plaintiff's "matter" even though defendant Crandall had a "conflict of interest." Plaintiff claims that defendant Rose violated plaintiff's due process rights when he made no effort to speak with plaintiff after Rose was assigned to represent him in the Family Court matter. Finally plaintiff alleges that his due process rights were violated by defendant Crandall when he held a hearing, knowing that plaintiff could not hear everyone in the courtroom. (Compl. ¶ 7).
Plaintiff seeks substantial monetary relief in the defendants' "Individual and Official" ...