United States District Court, N.D. New York
PAKENAUTH GEER, Comstock, New York, Plaintiff Pro Se.
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
The Clerk has sent to the Court a civil rights complaint brought by pro se plaintiff Pakenauth Geer ("Geer") pursuant to 42 U.S.C. § 1983. Compl. (Dkt. No. 1). Geer has not paid the filing fee and instead seeks permission to proceed with this matter in forma pauperis ("IFP"). Dkt. No. 2. Geer has also filed an inmate authorization form. Dkt. No. 3.
A. Application to Proceed IFP
Geer has submitted an IFP Application. After reviewing the entire file, the Court finds that plaintiff's financial status qualifies him to file this action without prepaying in full the filing fee. Although plaintiff is financially eligible to proceed IFP, he must still pay the partial filing fee as stated in 28 U.S.C. § 1915(b)(1). Plaintiff has filed the appropriate authorization form. Dkt. No. 3. Plaintiff's request to proceed IFP in this action is therefore granted.
B. Allegations Contained in the Complaint
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that... the action or appeal (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)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed further with his action.
Geer brings this action pursuant to 42 U.S.C. § 1983. An action commenced pursuant to 42 U.S.C. § 1983 requires proof of the "deprivation of any right, privilege, or immunit[y] secured by the Constitution" or laws of the federal government. 42 U.S.C. § 1983; see also German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) ("Section 1983 establishes a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.") (quotations omitted).
Geer's complaint is related and refers to actions which were the substance of another complaint filed in this district, Geer v. McFarren, No. 14-CV-589. Pursuant to a Decision and Order entered September 16, 2014, Geer's claims regarding the wrongful damage of his typewriter in April of 2014 and general allegations of harassment were dismissed with prejudice. Id., Dkt. No. 8. Geer's claims regarding retaliation for pursuing legal claims and interference with his mail were dismissed without prejudice and with a right to renew pursuant to filing an amended complaint. Id . No amended complaint was filed. Thus, according to a Judgment entered on November 19, 2014, the case was closed. Id., Dkt. No. 9.
In his present complaint, Geer says that he attended a disciplinary hearing on May 13, 2014 for the misbehavior report he received in April of 2014 when he was allegedly talking and typing during rounds and a corrections officer intentionally broke his typewriter - the basis for the former complaint which has since been dismissed. Compl. at 4. During that hearing, Geer contends that defendant Lewis refused to allow him to call witnesses in violation of his due process rights. Id . The disciplinary hearing resulted in a guilty disposition and thirty day loss of recreation privileges. Id . Further, on the day of the hearing, Geer was given his broken typewriter back, and forced to take it back to his cell with him by defendant Murphy, even though it was no longer operational. Id.
Geer also contends he was given a false misbehavior report by defendant McMillian, which defendant Brown was aware of, and for which Brown imposed an improper punishment. Compl. at 4, 7. The specifics of the events surrounding the timing of the issuance and content of the ticket, the subsequent disciplinary hearing, and exact disposition are unknown. Geer includes the statement of claim and request for relief from his other claim in the present complaint. Id. at 5.
Geer seeks $10 million dollars for damages he suffered in connection with defendants actions, specifically: Lewis prohibiting him from calling witnesses at his disciplinary hearing; Murphy forcing him to reclaim his broken typewriter; McMillion writing him a false misbehavior report; and Brown issuing a penalty in connection with a known false misbehavior report. Compl. at 7. For a further recitation of the facts, reference is made to the complaint.
To the extent that Geer is attempting to resurrect any of his claims related to his damaged typewriter, such claims should be dismissed. See Hudson v. Palmer, 468 U.S. 517, 531 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 541 (1981)) (explaining that even intentional destruction of an inmate's personal property may not be the basis of a constitutional claim if sufficient post deprivation remedies are available to address the claim); see also Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001) (holding that the Second Circuit ...