United States District Court, N.D. New York
TIMOTHY DEAN BEST, Plaintiff, pro se.
ANDREW T. BAXTER, Magistrate Judge.
The Clerk has sent to the Court a civil rights complaint, transferred from the Eastern District of New York, filed by pro se plaintiff Timothy Dean Best. (Dkt. No. 1 & Text Order of July 29, 2014). Plaintiff has also filed an application to proceed in forma pauperis ("IFP"). (Dkt. No. 2). For the following reasons, this court will grant plaintiff's IFP application, but will recommend dismissal of the complaint pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii).
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 case, plaintiff alleges that on August 18, 2012, at approximately 4:30 p.m., Village of Ellenville Policemen Donald D. Langlois and "two other unidentifiable Officers" used excessive force against plaintiff in violation of his Constitutional Rights. (Compl. at CM/ECF p.2) (Dkt. No. 1). Plaintiff alleges that this incident took place at the apartment of Lisa Jennings. ( Id. ) Plaintiff states that he visited Ms. Jennings that afternoon in order to bring her food for the week. However, while he was at Ms. Jennings's apartment, plaintiff had an argument with Ms. Jennings's brother Louis Jennings. Plaintiff states that the Ellenville Police were called, and plaintiff was asked to leave the premises.
Plaintiff claims that while he was walking away from the building, he remembered that he had left his bicycle on the side of the building. When he went to retrieve his bicycle, "one of the Officers" grabbed him, and "there were [sic] beating on my head and body coming from every angle." ( Id. ) Plaintiff states that the officers did not give him time to explain why he was returning to the apartment. Plaintiff further alleges that after he was handcuffed and bent over the hood of one of the officers' cars, "one of the Officers came around and begins [sic] to [spray] chemical agent on my entire face and eyes, while saying, yeah." ( Id. ) Plaintiff also claims that he was thrown harshly into the back seat of the police car, and he was not warned of his right to remain silent or his right to counsel at the scene or later at the police station, which "affected [his] case." ( Id. at 2, 3).
Plaintiff states that as a result of the incident he has a permanent scar on the back of his head, a permanent scar on his "mind, " and from time to time, he experiences blurred vision. ( Id. at 3). Plaintiff seeks substantial monetary relief. ( Id. )
III. Village of Ellenville ...