United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY United States District Judge
before this Court is pro se Plaintiff Deborah Ann
Buczek's complaint and motion to stay state foreclosure
proceedings. (Docket Nos. 1 and 3.) Because Buczek has been
granted in forma pauperis status (Docket No. 9), her
complaint is subject to the screening provisions in 28 U.S.C.
§ 1915 (e)(2)(B). For the reasons stated below,
Buczek's motion to stay state foreclosure proceedings is
denied and her complaint is dismissed with prejudice.
of the distinct disadvantage that pro se litigants face,
federal courts routinely read their submissions liberally and
interpret them to raise the strongest arguments that they
suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Since Buczek
is proceeding pro se, this Court has considered her
submissions and arguments accordingly.
28 U.S.C. § 1915 (e)(2)(B), a court must dismiss a case
in which in forma pauperis status has been granted
if, at any time, the court determines that the action (i) is
frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief. If the
court plainly lacks jurisdiction to consider the complaint,
dismissal of the complaint as “frivolous” under
28 U.S.C. § 1915 (e)(2) is proper. See McGann v.
Comm'r, Soc. Sec. Admin., 96 F.3d 28, 30 (2d Cir.
1996). The screening process is intended to be “an
efficient means by which a court can screen for and dismiss
legally insufficient claims.” Abbas v. Dixon,
480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)).
1915 (e)(2)(B) and Rule 12 (b)(6) of the Federal Rules of
Civil Procedure allow for dismissal of a complaint for
failure to state a claim upon which relief can be granted.
Federal pleading standards are generally not stringent: Rule
8 requires only a short and plain statement of a claim.
Fed.R.Civ.P. 8 (a)(2). “Specific facts are not
necessary;” the plaintiff “need only ‘give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Erickson v.
Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007))
(internal quotation and citation omitted). But the plain
statement must “possess enough heft to show that the
pleader is entitled to relief.” Twombly, 550
U.S. at 555.
determining whether a complaint states a claim, the court
must construe it liberally, accept all factual allegations as
true, and draw all reasonable inferences in the
plaintiff's favor. ATSI Commc'ns, Inc. v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Legal
conclusions, however, are not afforded the same presumption
of truthfulness. See Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
survive, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Iqbal,
129 S.Ct. at 1945 (quoting Twombly, 550 U.S. at
570). Labels, conclusions, or “a formulaic recitation
of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Facial plausibility exists
when the facts alleged allow for a reasonable inference that
the defendant is liable for the misconduct charged.
Iqbal, 129 S.Ct. at 1949. The plausibility standard
is not, however, a probability requirement: the pleading must
show, not merely allege, that the pleader is entitled to
relief. Id. at 1950; Fed.R.Civ.P. 8 (a)(2).
Well-pleaded allegations in the complaint must nudge the
claim “across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.
two-pronged approach is thus used to examine the sufficiency
of a complaint, which includes “any documents that are
either incorporated into the complaint by reference or
attached to the complaint as exhibits.” Blue Tree
Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts
Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). This
examination is context specific and requires that the court
draw on its judicial experience and common sense.
Iqbal, 129 S.Ct. at 1950. First, statements that are
not entitled to the presumption of truth, such as conclusory
allegations, labels, and legal conclusions, are identified
and stripped away. See Iqbal, 129 S.Ct. at 1950.
Second, well-pleaded, non-conclusory factual allegations are
presumed true and examined to determine whether they
“plausibly give rise to an entitlement to
relief.” Id. “Where the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, ” the complaint fails to
state a claim. Id.
se actions, the United States Supreme Court has rejected the
idea that the plausibility standard requires amplification
with factual allegations to render the claim plausible. In
Erickson, the Supreme Court reversed the dismissal
of a prisoner's Eighth Amendment claim, holding that the
court of appeals had “depart[ed] from the liberal
pleading standards” of Rule 8(a). Boykin v.
KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting
Erickson, 127 S.Ct. at 2200). Although the Court did
not clarify when the plausibility standard requires factual
amplification, it noted that “a pro se complaint
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson, 127 S.Ct. at 2200 (quoting Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
determination that a pro se complaint is deficient,
a court will generally afford the plaintiff an opportunity to
amend or to be heard before dismissal, “unless the
court can rule out any possibility, however unlikely it might
be, that an amended complaint would succeed in stating a
claim.” Abbas, 480 F.3d at 639 (2d Cir. 2007)
(quoting Gomez v. USAA Fed. Savings Bank, 171 F.3d
794, 796 (2d Cir. 1999) (per curiam)). But leave to amend
need not be afforded when amendment would be futile, such as
when the proposed claim could not withstand a Rule 12 (b)(6)
motion. See Dougherty v. Town of N. Hempstead Bd. of
Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).
complaint, Buczek alleges that various individuals and
entities violated the Truth in Lending Act
(“TILA”), 15 U.S.C. §§ 1601, et
seq., and N.Y. Gen. Bus. Law § 349, by failing to
recognize her rescission of a “line of credit of $50,
000” obtained on October 7, 2008, and “an
extension of credit” obtained on February 23, 2007,
either or both of which were allegedly secured by her
principal dwelling at 7335 Derby Road in Derby,
(Complaint, ¶¶ 24-26, 34, 36, 43.) Buczek alleges
that she exercised her right to rescind these transactions on
June 22, 2015, when she sent written correspondence to
“all known parties in interest.” (Complaint,
¶ 32.) The basis for Buczek's rescission is that she
did not receive certain documents required under TILA at the
time of closing. (Complaint, ¶ 28.) Buczek alleges that
the defendants ignored her rescission correspondence or, in
the case of Defendant KeyBank National, refused to accept it.
(Complaint, ¶¶ 34, 35, 39.)
asserts that she has properly rescinded these transactions
under 15 U.S.C. § 1635, and therefore all further
proceedings concerning these transactions, including
continuation of the state foreclosure proceedings, violate
her statutory rights. She seeks a declaration that these
transactions are rescinded as well as actual and ...