United States District Court, N.D. New York
RAMOS 12-B-2475 Plaintiff, pro se Green Haven Correctional
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Plaintiff Ivan Ramos' initial complaint (Dkt. No. 1) in
this civil rights action against Defendant Carl J. Rust
(“Rust”), brought under 42 U.S.C. § 1983,
was dismissed for failure to state a claim on initial review
pursuant to 28 U.S.C. §§ 1915(e). (Dkt. No. 12.)
The dismissal was without prejudice, and the Hon. Frederick
J. Scullin, Senior District Judge, has referred
Plaintiff's amended complaint (Dkt. No. 11) to the Court
for initial review. Plaintiff has added Gregory J. Culick
(“Culick”) as a Defendant in his amended
found that Plaintiff meets the financial criteria for
commencing this case in forma pauperis, and because
Plaintiff seeks relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in the Complaint in light of 28
U.S.C. §§ 1915(e) and 1915A. Section 1915(e)
directs that when a plaintiff 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)(B)(i)-(iii).
under 28 U.S.C. § 1915A, a court must review any
“complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of
a governmental entity” and must “identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint . . . is frivolous,
malicious, or fails to state a claim upon which relief can be
granted; or . . . seeks monetary relief against a person who
is immune from such relief.” 28 U.S.C. § 1915A.
reviewing a pro se complaint, the Court has the duty
to show liberality towards pro se litigants, see
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and
should exercise “extreme caution . . . in ordering
sua sponte dismissal of a pro se complaint
before the adverse party has been served and both
parties (but particularly the plaintiff) have had an
opportunity to respond.” Anderson v. Coughlin,
700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted).
Therefore, a court should not dismiss a complaint if the
Plaintiff has stated “enough facts to state a claim
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the Court should construe the factual allegations in
the light most favorable to Plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.”
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly,
550 U.S. at 555). “[W]here the well-pleaded facts do
not permit the court to infer more than the possibility of
misconduct, the complaint has alleged but it has not
“show[n] that the pleader is entitled to relief.”
Id. at 679 (quoting Federal Rule of Civil Procedure
8(a)(2)). While Rule 8(a) of the Federal Rules of Civil
Procedure, which sets forth the general rules of pleading,
“does not require detailed factual allegations, . . .
it demands more than an unadorned, the-defendant-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). Thus, a pleading that
only “tenders naked assertions devoid of further
factual enhancement” will not suffice. Id.
(internal quotations marks and alterations omitted).
Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them”
are subject to dismissal. Sheehy v. Brown, 335 F.
App'x 102, 104 (2d Cir. 2009).
pro se complaint fails to state a cause of action,
the court generally “should not dismiss without
granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim
might be stated.” Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation and internal quotation marks
omitted). An opportunity to amend is not required where
“the problem with [the plaintiff's] causes of
action is substantive” such that “better pleading
will not cure it.” Id. (citation omitted).
PLAINTIFF'S AMENDED COMPLAINT
is presently imprisoned after being convicted by a jury of a
double homicide. (Dkt. No. 11 at ¶ 4.) Defendant Rust
is a Sergeant in the Amsterdam Police Department in
Amsterdam, New York. Id. at ¶ 3. On March 2,
2012, at approximately 5:50am, Rust arrived at the crime
scene of the double homicide at 359 Locust Avenue, and upon
entering the apartment saw one male victim and one female
victim in close proximity. Id. at 5. Rust took four
photographs on his department phone and backed out of the
crime scene. Id.
who was sentenced to life in prison without parole, has
denied committing the crimes, and since his conviction has
begun his own investigation and allegedly learned from a
reliable source that the actual perpetrator of the double
homicide had left his orange and blue parka at the crime
scene and had been unsuccessful in retrieving it.
Id. at ¶¶ 7-9. The Plaintiff has
identified the alleged perpetrator and the alleged source of
the information in his amended complaint. Id. at
contends he needs the four pictures in order to demonstrate
that someone other than he committed the double homicide.
Id. at ¶ 16. According to Plaintiff, if he had
the pictures, he could show them to his source to ascertain
if the orange and blue parka belonged to the person Plaintiff
believes to have been the actual perpetrator of the crimes.
Id. at ¶ 17.
alleges that the discovery will lead to DNA testing, and that
without the four photos, his access to the courts will be
curbed. Id. at ¶ at 18.
April 12, 2016, Plaintiff submitted a Freedom of Information
Law (“FOIL”) request under N.Y. Pub. Off. Law
§§ 87-89, requesting:
1.) A complete list of all Departmental Equipment/Gear issued
to Sgt. Carl Rust, Badge # 207, for the dates ...