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Lewis v. Giardino

United States District Court, N.D. New York

February 18, 2015

RASHAWN E. LEWIS, Plaintiff,
v.
RICHARD GIARDINO, Defendant.

RASHAWN E. LEWIS, 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"), and a motion for appointment of counsel filed by pro se plaintiff, Rashawn E. Lewis. (Dkt. Nos. 1-3).

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.

II. Complaint

Plaintiff has filed his complaint on a form used for employment discrimination cases brought pursuant to Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e et seq. However, it is clear that plaintiff was not employed by the defendant, and that his only basis for bringing this action would be under 42 U.S.C. § 1983. The court will interpret this action as having been brought under the appropriate statute.[1]

In his complaint, plaintiff alleges he was convicted for Criminal Sale of a Controlled Substance in the Third Degree, and that this was his first felony conviction. (Dkt. No. 1-1 at CM/ECF p.3). Plaintiff claims that defendant Giardino, who is a judge in Schenectady County, gave plaintiff an "excessive sentence, " pursuant to which, he was unlawfully imprisoned. (Dkt. No. 1-1 at CM/ECF p.2). Plaintiff claims that his sentence of nine years incarceration with two years of post-release supervision was "illegal" under the "NYS Rocerfela [sic] Law Reform." ( Id. at 3). Plaintiff states that "there never should have been a 2yr Post Release Supervision." ( Id. ) Plaintiff also claims that the excessive sentence was imposed because he "was black." ( Id. at 4).

The complaint contains three causes of action, all relating to the allegedly excessive sentence and mistreatment by defendant Giardino. ( Id. at 5). Plaintiff seeks only money "for [his] relief" in the amount of $100, 000.00. (Dkt. No. 1 at CM/ECF p.3; Dkt. No. 1-1 at CM/ECF p. 6).

III. Judicial ...


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