United States District Court, N.D. New York
SCOTT E. CLEARY, Plaintiff,
LEVI STRAUSS, Defendant.
E. CLEARY Plaintiff Pro Se
D'Agostino, U.S. District Judge
November 3, 2016, Scott E. Cleary ("Plaintiff")
commenced this action pro se against Levi Strauss
("Defendant"). See Dkt. No. 1. Plaintiff
filed a series of documents and an application to proceed
in forma pauperis ("IFP"), but did not
clearly identify any of the documents that he filed as a
complaint. See Dkt. Nos. 1, 2. Generally,
Plaintiff's documents relate to an allegation that
Defendant Levi Strauss "stole" his patent,
identified as "Trouser Safety Pocket - Patent [No.]
¶ 6, 374, 421" around August of 2001. See
Dkt. No. 1 at 1. Plaintiff also appears to complain of mail
tampering. See id.
November 18, 2016 Report, Recommendation, and Order,
Magistrate Judge David E. Peebles granted Plaintiff's
application to proceed IFP and recommended that
Plaintiff's complaint be dismissed with leave to amend.
See Dkt. No. 4 at 7, 9. Specifically, Magistrate
Judge Peebles found that Plaintiff's submissions provide
no clear legal basis upon which he can assert a cognizable
cause of action. See Id. at 7.
reviewing a complaint under 28 U.S.C. § 1915(e), courts
are guided by the applicable requirements of the Federal
Rules of Civil Procedure. Rule 8(a) of the Federal Rules of
Civil Procedure provides that a pleading must contain "a
short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
While Rule 8(a) "does not require 'detailed factual
allegations, ' . . . it demands more than an
unadorned" recitation of the alleged misconduct.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (other citation omitted).
survive dismissal for failure to state a claim, a party need
only present a claim that is "plausible on its
face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678 (citation
omitted). In determining whether a complaint states a claim
upon which relief may be granted, "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). However, "the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions." Iqbal, 556 U.S. at 678. Moreover,
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Id. (citation omitted).
reviewing a report and recommendation, a district 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)(C). When a party
makes specific objections to a magistrate judge's report,
the district court engages in de novo review of the
issues raised in the objections. See id.; Farid
v. Bouey, 554 F.Supp.2d 301, 307 (N.D.N.Y. 2008). When a
party fails to make specific objections, the court reviews
the magistrate judge's report for clear error. See
Farid, 554 F.Supp.2d at 307; see also Gamble v.
Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y.
Nov. 29, 2004). Plaintiff has not filed objections in this
litigant's failure to file objections to a magistrate
judge's report and recommendation, even when that
litigant is proceeding pro se, waives any challenge
to the report on appeal. See Cephas v. Nash, 328
F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule,
a party's failure to object to any purported error or
omission in a magistrate judge's report waives further
judicial review of the point" (citation omitted)). A
pro se litigant must be given notice of this rule;
notice is sufficient if it informs the litigant that the
failure to timely object will result in the waiver of further
judicial review and cites pertinent statutory and civil rules
authority. See Frank v. Johnson, 968 F.2d 298, 299
(2d Cir. 1992); Small v. Sec'y of Health and Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a
pro se party's failure to object to a report and
recommendation does not waive his right to appellate review
unless the report explicitly states that failure to object
will preclude appellate review and specifically cites 28
U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e)
of the Federal Rules of Civil Procedure).
present matter, Magistrate Judge Peebles correctly determined
that Plaintiff's submissions do not satisfy either the
requirements of Rule 8 of the Federal Rules of Civil
Procedure or the pleading requirements articulated by the
Supreme Court in Twombly and Iqbal. The
documents Plaintiff submitted include: (1) a letter addressed
to "The San Juan Star"; (2) a letter addressed to
Plaintiff from then-New York Senator Hillary Clinton; (3)
copies of postal mail receipts; (4) a copy of the first page
of U.S. Patent No. 6, 374, 421; (5) a copy of an
advertisement for men's Dockers pants; (6) a letter
addressed to Plaintiff from Defendant Levi Strauss'
consumer relations specialist; (7) a news article dated March
30, 2007; and (8) a letter that Plaintiff wrote dated April
2, 2005. See Id. at 1-10. Plaintiff neither filed a
complaint nor distinctly asserted any legal claim in any of
his submitted documents. See id. Even construing
Plaintiff's submissions liberally, none of his documents
sufficiently state a claim upon which relief can be granted.
Therefore, Plaintiff's complaint is dismissed.
a court should not dismiss a complaint filed by a pro
se litigant 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.'"
Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015)
(quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d
Cir. 2010)); see also Fed. R. Civ. P. 15(a)(2)
("The court should freely give leave when justice so
requires."). "'[T]he district court has
discretion whether or not to grant leave to amend, and its
decision is not subject to review on appeal except for abuse
of discretion.'" Shomo v. New York, 374
Fed.Appx. 180, 182 (2d Cir. 2010) (quoting Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)). An opportunity
to amend is not required where "the problem with
[plaintiff's] causes of action is substantive" such
that "better pleading will not cure it." Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation
omitted). As the Second Circuit has explained, "[w]here
it appears that granting leave to amend is unlikely to be
productive . . . it is not an abuse of discretion to deny
leave to amend." Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations
Magistrate Judge Peebles correctly determined that Plaintiff
could conceivably amend his filings to state a cognizable
cause of action. See Dkt. No. 4 at 9. Therefore,
leave to amend is granted, and any amended complaint must be
filed within thirty days of this Order.
carefully reviewed Magistrate Judge Peebles' Report,
Recommendation, and Order, Plaintiffs submissions, and the
applicable law, and for the above-stated reasons, the Court
that Magistrate Judge David E. Peebles' November 18, 2016
Report, Recommendation, and Order is ADOPTED in ...