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Lapoint v. Vasiloff

United States District Court, N.D. New York

March 3, 2015

LANCE LaPOINT, Plaintiff,
v.
SGT. PETER VASILOFF, et al., Defendants.

LANCE LAPOINT 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, Lance LaPoint. (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.

II. Complaint

In this civil right complaint, plaintiff alleges that on February 25, 2012, he "hopped a train" at the train yard in Syracuse, New York in order to "catch a ride to Rosie O'Grady's." (Complaint ("Compl.") at CM/ECF p.3). Plaintiff alleges that the train operator told him to get off the train, and as he was passing through the engine area on his way off of the train, he "proceeded to blow the whistle." (Id. ) Plaintiff noticed flashlights coming toward him, and he opened the door to "allow the police officers to come in." He immediately put his hands up to show that he was cooperating. (Id. )

Plaintiff states that while one of the officers was shining his flashlight directly into plaintiff's face so that he could not see, he was suddenly struck in the face with "something very hard." (Id. ) Plaintiff states that his "eyes went blurry, " and he fell to the floor. While plaintiff was on the floor, the officers repeatedly struck him around the head and face as he was trying to cover his face to prevent further injury. Plaintiff was then handcuffed, picked up, pushed down the train ladder, and dragged to the police car. Plaintiff states that he was in a lot of pain and bleeding from his mouth and face. (Id. )

Plaintiff states that he was taken to the Onondaga County Justice Center ("OCJC") and "thrown" into a cell. Plaintiff states that when he was placed in the cell, he put his head over the sink to catch the blood, and he begged to be taken to the hospital. Plaintiff claims that he was told to put his head back over the sink, or he would be "mopping it up." (Id. ) Plaintiff states that over the next two days, he was suffering incredible pain and "going in and out of consciousness." Even though he continued to "beg" to be taken to the hospital, he was denied medical attention for over forty-eight hours before "they" finally took him to Upstate Hospital, where it was determined that he had suffered a concussion, multiple fractures of his face and skull, deep lacerations, and loss of teeth. Plaintiff states that these injuries resulted in pain, suffering, facial disfigurement, and permanent damage.

Plaintiff's causes of action include excessive force and a failure to provide proper medical care. Plaintiff ...


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