United States District Court, N.D. New York
RAMIC ELDIN, Utica, New York, Plaintiff pro se.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff commenced this civil rights action pro se on April 13, 2015 pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. In an Order and Report-Recommendation dated April 20, 2015, Magistrate Judge Andrew T. Baxter granted Plaintiff's in forma pauperis ("IFP") application for purposes of filing only and recommended that Plaintiff's complaint be dismissed for failure to state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt. No. 5. Presently before the Court are Plaintiff's objections to Magistrate Baxter's Order and Report-Recommendation. See Dkt. No. 6.
As Magistrate Judge Baxter noted in his Order and Report-Recommendation, Plaintiff's complaint is difficult to read and does not request any relief. See Dkt. No. 5 at 3. Plaintiff's complaint is on a form designated for civil rights complaints pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. Plaintiff generally alleges that he has been a victim of torture by "psychotronic weapons" and "microwaving" for the past fifteen years. See id. at 4. Plaintiff names two defendants: Veldin Barber and Police. See id. at 1. Based on the addresses provided by Plaintiff, it appears that Plaintiff is referring to the Veldin Barber Shop in Utica, New York, and the Utica Police Department. As set forth in Magistrate Judge Baxter's Order and Report-Recommendation, Plaintiff appears to allege that someone at the Veldin Barber Shop implanted surveillance equipment into his head, thereby initiating Plaintiff's alleged mental torture and mind surveillance. See Dkt. No. 5 at 3. In addition, Plaintiff attached a request to his complaint to reopen case number 6:04-CV-241. See Dkt. No. 1-1 at 1.
In his Order and Report-Recommendation, Magistrate Judge Baxter granted Plaintiff's IFP application for purposes of filing only. See Dkt. No. 5 at 1. Turning to his review of the sufficiency of the allegations set forth in Plaintiff's complaint pursuant to 28 U.S.C. § 1915, Magistrate Judge Baxter first determined that Plaintiff failed to state a section 1983 claim against the Veldin Barber Shop because Plaintiff did not allege that any individual at the barber shop acted under color of state law. See id. at 8-9. Magistrate Judge Baxter then found that Plaintiff's claim against the Utica Police Department failed because the department does not have a legal identity separate from the City of Utica and cannot be sued. See id. at 9-10. Magistrate Judge Baxter further concluded that substituting the City of Utica for the "Police" would be futile because Plaintiff alleged no facts that would establish municipal liability. See id. at 10-13. Magistrate Judge Baxter then recommended that Plaintiff's complaint be dismissed without leave to amend because amendment would be futile. See id. at 13-14. Magistrate Judge Baxter also denied Plaintiff's motion for appointment of counsel after concluding that Plaintiff's claims do not seem likely to be of substance. See id. at 14-15.
On April 27, 2015, Plaintiff filed a 260-page document labeled "Objection to Report." See Dkt. No. 6. Plaintiff's filing includes thirty-nine handwritten pages, which contain disjointed and often illegible statements that largely describe Plaintiff's alleged mental torture over a period of thirteen years. See id. at 2-40. To the extent that the Court can decipher Plaintiff's allegations, Plaintiff references the use of "voice prints" to send Plaintiff's brain negative messages regarding Plaintiff and his family, the implantation of various disturbing mental images in Plaintiff's brain, mental threats, and various negative consequences suffered by Plaintiff, including failure in school, the loss of various jobs, and depression. See id. Plaintiff also appears to allege that a particular mental attack caused his body to fail and that he spent time in a hospital as a result of this attack. See id. at 16-20. Plaintiff's objections do not discuss Magistrate Judge Baxter's Order and Report-Recommendation, assert any legal theories, or identify any individuals or entities responsible for the alleged mental attacks on Plaintiff.
A. Standard of Review
When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge, " the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
When a plaintiff seeks to proceed IFP, "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). In making this determination, "the court has the duty to show liberality towards pro se litigants, " however, "there is a responsibility on the court to determine that a claim has some arguable basis in law before permitting a plaintiff to proceed with an action in forma pauperis." Moreman v. Douglas, 848 F.Supp. 332, 333-34 (N.D.N.Y. 1994) (internal citations omitted). "[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
B. 42 U.S.C. § 1983
1. Action under color of state law