United States District Court, N.D. New York
ROCHELLE COLEMAN Plaintiff Pro Se
D'Agostino, U.S. District Judge
8, 2016, pro se Plaintiff Rochelle Coleman filed
three civil rights complaints as one action against
Defendants Paula Engle, an attorney, Sarah Merrick, the
Onondaga County Social Services Commissioner and Comptroller,
and Robert Antunacci, the Onondaga County Comptroller.
See Dkt. Nos. 1, 1-1, and 1-2. Plaintiff asserts
claims pursuant to 42 U.S.C. § 1983 ("section
1983"), Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. § 2000e et
seq., and the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq. See
29, 2016, Magistrate Judge Peebles issued a Report,
Recommendation and Order granting Plaintiff's application
to proceed in forma pauperis ("IFP") while
denying Plaintiff's motion for appointment of counsel.
See Dkt. No. 6 at 18. After review, Magistrate Judge
Peebles recommended the Court dismiss all three of
Plaintiff's complaints with prejudice due to her failure
to state a claim. See Id. at 19. Currently before
the Court is Magistrate Judge Peebles' Report,
Recommendation and Order.
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.'" Griffin v. Doe, 71
F.Supp.3d 306, 311 (N.D.N.Y. 2014) (citing Moreman v.
Douglas, 848 F.Supp. 332, 333-334 (N.D.N.Y. 1994)
(internal citations omitted)); see also Thomas v.
Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam)
(holding that a district court has the power to dismiss a
complaint sua sponte if the complaint is frivolous).
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) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (other citations 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. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice." Iqbal, 556 U.S. at 678 (citation
party objected to Magistrate Judge Peebles' Report,
Recommendation, and Order. As a general matter, when a party
files specific objections to a magistrate judge's report
and recommendation, the district court "make[s] 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)(C).
However, when a party files "'[g]eneral or
conclusory objections, or objections which merely recite the
same arguments presented to the magistrate judge, '"
the court reviews those recommendations "'for clear
error.'" Chime v. Peak Sec. Plus, Inc., 137
F.Supp.3d 183, 187 (E.D.N.Y. 2015) (quotation 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.
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).
section 1983 complaint, Plaintiff alleges that her benefits
were stolen, accuses "county workers" of welfare
fraud and asserts that after she made her accusations,
Defendants contributed to the wrongful removal of her
children from her custody. See Dkt. No. 1 at 3;
see also Dkt. No. 6 at 3. Specifically, Plaintiff
claims that Defendants ignored her complaints, conspired to
cover up the fraud, and conspired to remove Plaintiff's
children from her custody. See Dkt. No. 1 at 3.
Liberally construed, Plaintiff's section 1983 complaint
includes claims for retaliation, violation of due process
rights, unlawful seizure, and conspiracy to deprive Plaintiff
of constitutional rights. See Dkt. No. 6 at 9.
section 1983 retaliation claim exists when a state actor
takes adverse action against a plaintiff motivated by the
plaintiff's exercise of a constitutional right, such as
free speech under the First Amendment. See Friedl v. City
of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In
general, a section 1983 claim will lie where the government
takes negative action against an individual because of his
exercise of rights guaranteed by the Constitution or federal
laws") (citations omitted). To succeed on a section 1983
claim for retaliatory conduct, a plaintiff must demonstrate
that (1) she engaged in protected conduct; (2) the defendant
took adverse action against her; and (3) there was a causal
connection between the protected activity and the adverse
action - in other words, that the protected conduct was a
"substantial or motivating factor" in the
government official's decision to take action against the
plaintiff. See Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977); Dillon v.
Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v.
Reynolds, No. 9:99-cv-2065, 2003 WL 22299359, *4
(N.D.N.Y. Oct. 3, 2003).
in connection with Plaintiff's section 1983 claim for
retaliatory conduct, the only identified adverse action is
the removal of her children. See Dkt. No. 1 at 3. As
Magistrate Judge Peebles correctly found, Plaintiff has
failed to allege any facts to plausibly suggest that
Defendants were involved in the decision to remove
Plaintiff's children from her custody, or that this
alleged adverse action was motivated by Plaintiff's
complaints. See Dkt. No. 6 at 10.
the second claim in her section 1983 complaint, Magistrate
Judge Peebles correctly determined that Plaintiff failed to
state a claim for violation of due process under the
Fourteenth Amendment or unlawful seizure under the Fourth
Amendment. See Id. at 10-11. Again, Plaintiff
alleges nothing that "plausibly suggest[s] that any of
the defendants were personally involved in any respect with
the removal of [P]laintiff's children from her
custody." See id. at 11; see also Grullon
v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
("It is well settled that, in order to establish a
defendant's individual liability in a suit brought under
§ 1983, a plaintiff must show, inter alia, the
defendant's personal involvement in the alleged
constitutional deprivation") (citations omitted).
Magistrate Judge Peebles correctly determined that
Plaintiff's section 1983 conspiracy claim failed to state
a claim against Defendants. See Dkt. No. 6 at 11-12.
Plaintiff failed to provide any details "relative to
defendants' alleged involvement in the conspiratorial
conduct" and she "failed to allege any of the
defendants entered into an agreement with anyone to deprive
[P]laintiff of her constitutional rights." See
Id. at 12. To sustain a conspiracy claim under 42 U.S.C.
§ 1983, "a plaintiff must demonstrate that a
defendant 'acted in a willful manner, culminating in an
agreement, understanding or meeting of the minds, that
violated the plaintiff's rights . . . secured by the
Constitution or the federal courts.'" Krebs v.
New York State Division of Parole, No. 9:08-cv-0255,
2009 WL 2567779, *13 (N.D.N.Y. Aug. 17, 2009) (quoting
Malsh v. Austin, 901 F.Supp. 757, 763 (S.D.N.Y.
1995)). Finally, Magistrate Judge Peebles also correctly
determined that all claims raised in Plaintiff's section
1983 complaint are also subject to dismissal pursuant to the
Rooker-Feldman doctrine. See Torres v. ...