United States District Court, N.D. New York
STEVEN D. BURDICK, Plaintiff,
NEW YORK STATE POLICE, N.Y.S. TROOPER ALEX KURILOVITCH, N.Y.S. TROOPER MICHAEL SCHMIT, N.Y.S. TROOPER SGT. EDWIN CROUCHER, OSWEGO COUNTY, Defendants.
STEVEN D. BURDICK Plaintiff pro se Fulton, NY.
ORDER and REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, Magistrate Judge.
Presently before the Court is a pro se complaint and application to proceed in forma pauperis filed by Plaintiff Steven D. Burdick. (Dkt. Nos. 1 and 5.)
I. APPLICATION TO PROCEED IN FORMA PAUPERIS
Plaintiff has applied to proceed in forma pauperis. (Dkt. No. 5.) A court may grant in forma pauperis status if a party "is unable to pay " the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 5), I find that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.
II. SCREENING OF THE COMPLAINT
A. Applicable Legal Standard
28 U.S.C. § 1915(e) directs that when a litigant proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that... the action... (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).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief... requires the... court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted).
"In reviewing a complaint... the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
When screening a complaint, the court has the duty to show liberality towards pro se litigants. Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam). "[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties have had an opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
B. Allegations of the Complaint
Plaintiff alleges that Defendant State Troopers Alex Kurilovitch and Michael Schmit came to Plaintiff's residence on October 14, 2011, because they had received a complaint that Plaintiff was neglecting an animal. (Dkt. No. 1 ¶ 21.) The complainant had reported that Plaintiff's dog was seriously injured after being hit by a car and had been in the same spot in Plaintiff's yard for twenty-two hours. Id. ¶ 22.
Plaintiff and his four-year-old son went into the yard to speak to Defendants and accompanied them to check on the dog. (Dkt. No. 1 ¶ 24.) Plaintiff explained that his dog had been eating and drinking normally since being hit by the car, was able to stand and walk, did not appear to have any serious injuries, and had walked on its own into the yard that morning after being carried into the enclosed porch the night before. Id. ¶¶ 25-26.
Defendants informed Plaintiff that they were going to seize the dog. (Dkt. No. 1 ¶ 28.) Plaintiff became concerned and called his attorney for advice. Id. The attorney asked to speak to a trooper. Id. When Plaintiff held out the phone to Defendant Kurilovitch, he slapped it out of Plaintiff's hand and yelled that he did not want to speak to Plaintiff's attorney. Id. ¶ 29.
After Defendant Kurilovitch slapped Plaintiff's phone, Plaintiff picked up his son and walked back toward his house. (Dkt. No. 1 ¶ 31.) Plaintiff did not believe that he was being detained or that he was under arrest. Id. He walked up the entry stairs, stepped onto the top step, and "set his son down just inside the enclosed front porch entry." Id. ¶ 32. Immediately thereafter, Defendants Kurilovitch and Schmit tackled Plaintiff and threw him over the stair railing. Id. The officers shouted, "You're under arrest" when Plaintiff was in mid-air. Id. ¶ 33. As he landed, Plaintiff's neck and upper back slammed into the side of a van parked in the driveway. Id. ¶ 34.
Defendants arrested Plaintiff and charged him with cruelty to an animal, endangering the welfare of a child, and resisting arrest. (Dkt. No. 1 ¶ 35.) After Plaintiff was arrested and booked, he was transported to St. Joseph's Hospital for x-rays and treatment. Id. ¶ 34.
Plaintiff alleges that Defendants Kurilovitch and Schmit "did act on the order/directive of their superior, N.Y.S. Police S[e]rg[e]ant, Edwin Croucher[, ] in their arrest of the Plaintiff." (Dkt. No. 1 ¶ 38.) Plaintiff alleges that Defendant Croucher mocked him as he was being processed at the N.Y.S. Police Barracks in Fulton. Id.
Plaintiff alleges that news of his arrest was "published in the news media via information conveyed... by the Defendant(s)." (Dkt. No. 1 ¶ 42.) He alleges that Defendants' statements were false and caused Plaintiff to lose his established place of business, suffer a substantial loss of business, lose key employees, incur substantial legal fees, and suffer physical pain and severe mental anguish. Id. ¶ 44.
Plaintiff alleges that:
Defendant  Oswego County  had knowledge shortly after the fact  that there was no probable cause and no warrant for the N.Y.S. Troopers to arrest the Plaintiff and should have dismissed with prejudice all charges against the Plaintiff arising out of the October 14, 2011 arrest. Instead, Oswego ...