United States District Court, N.D. New York
ROCHELLE COLEMAN Plaintiff Pro Se
D'Agostino, U.S. District Judge
8, 2017, pro se Plaintiff Rochelle Coleman filed as
one action four civil rights complaints against two
attorneys, Jaya Olinski and Howard Olinski, and, with respect
to one complaint, the Commissioner of Social Security.
See Dkt. Nos. 1, 1-1, 1-2, and 1-3. 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., the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq.,
and Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971)
("Bivens"). See id. Additionally,
Plaintiff filed a motion for leave to proceed in forma
pauperis ("IFP") and two motions to appoint
counsel. See Dkt. Nos. 2, 3 and 6.
29, 2016, Magistrate Judge Peebles issued a Report,
Recommendation and Order granting Plaintiff's application
to proceed in forma pauperis and denying
Plaintiff's two motions to appoint counsel. See
Dkt. No. 8 at 16. Magistrate Judge Peebles recommended the
Court dismiss Plaintiff's four complaints with prejudice
due to Plaintiff's failure to state a claim. See
id. 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) (quoting Moreman v.
Douglas, 848 F.Supp. 332, 333-334 (N.D.N.Y. 1994))
(internal citations omitted); see, e.g.,
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
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 alleges that her social security
benefits "were unlawfully taken, "
"misappropriat[ed], " "wrongfully unreported,
" not paid "in a timely manner" and that she
was "overcharg[ed] . . . case fees." Dkt. No. 1 at
2. Magistrate Judge Peebles recommended the Court dismiss
Plaintiff's section 1983 complaint with prejudice.
See Dkt. No. 8 at 10.
state a claim under § 1983, a plaintiff must allege two
elements: (1) 'the violation of a right secured by the
Constitution and laws of the United States, ' and (2)
'the alleged deprivation was committed by a person acting
under color of state law.'" Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 87-88 (2d Cir. 2015)
(citations and quotations omitted). "State action is an
essential element of any § 1983 claim." Baum v.
N. Dutchess Hosp., 764 F.Supp.2d 410, 419 (N.D.N.Y.
2011) (citing Lugar v. Edmondson Oil Co., 457 U.S.
922, 934 (1982) (other citations omitted)). Since private
attorneys, even when appointed by the court, do not act under
color of state law for purposes of section 1983, the Court
finds that Magistrate Judge Peebles correctly determined that
this claim should be dismissed with prejudice. See
Harrison v. New York, 95 F.Supp.3d 293, 328-29 (E.D.N.Y.
2015) (quotation and other citations omitted). Therefore, the
Court dismisses Plaintiff's section 1983 complaint with
Title VII complaint asserts a claim for discrimination on the
basis of her race or color, income, disability, and
education. Dkt. No. 1-1 at 2. To support this claim,
Plaintiff alleges that in 2010 she "won [her] disability
case" and "found out that [the] attorneys took more
money than the judge awarded." Id. at 3.
Additionally, Plaintiff claims she was never given
"financial receipts from [her] lawyer" or told how
much she was awarded. Id. Plaintiff also claims that
the attorneys "told [her] that [she] owed money"
when she did not owe any money and that the attorneys
"altered documents of [her] financial records and kept
money" improperly. Id. at 4.
Magistrate Judge Peebles correctly found, Plaintiff
"does not allege employment discrimination" and her
complaint "do[es] not state a cognizable employment
discrimination cause of action under Title VII." Dkt.
No. 8 at 11; see also Dawson v. Bumble & Bumble,
398 F.3d 211, 216 (2d Cir. 2005) (reciting the elements of a
Title VII claim). Additionally, Plaintiff's Title VII
claim is subject to dismissal because "'individuals
are not subject to liability under Title VII.'"
Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir.
2009) (quoting Patterson v. County of Oneida, 375
F.3d 206, 221 (2d Cir. 2004)) (other quotations omitted).
Moreover, "Title VII plaintiffs must receive a
'right-to-sue letter' from the EEOC before filing
suit in court" which Plaintiff failed to attach.
Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d 164,
168 (2d Cir. 1998) (citing 42 U.S.C. § 2000e-5(f)(1))
(other citations omitted). Therefore, the Court dismisses
Plaintiff's Title VII complaint with prejudice.
ADA complaint lists her disabilities as depression, anxiety,
asthma, arthritis, unspecified mental health issues,
migraines, brain surgery on November 10, 2015, sleep apnea,
and insomnia. Dkt. No. 1-2 at 2. Plaintiff alleges that the
attorneys "took benefits from [her]" and that in
2010 she "won [her] disability case" and was told
by the judge "to pay fees, " but not given any
paperwork to show her award. Id. at 3. Plaintiff
further alleges she called the Social Security Administration
and spoke with "a woman [who] gave [her] some
files" and while reviewing the files, Plaintiff
"saw staples and incorrect information."
Id. Lastly, Plaintiff claims she ...