United States District Court, N.D. New York
WILLIAM G. SCHISLER, Plaintiff,
UTICA POLICE DEPARTMENT, UTICA CITY HALL, Defendants.
WILLIAM G. SCHISLER Plaintiff, pro se
OF UTICA - CORPORATION COUNSEL Attorneys for Defendants
ZACHARY C. OREN, ESQ.
D'Agostino, U.S. District Judge
August 29, 2016, Plaintiff William Schisler filed his 42
U.S.C. § 1983 civil rights complaint against Defendants
Utica Police Department and Utica City Hall. See
Dkt. No. 1. That same day, Plaintiff also filed a motion for
leave to proceed in forma pauperis
("IFP"). See Dkt. No. 2. Magistrate Judge
Dancks issued an Order and Report-Recommendation granting
Plaintiff's IFP application and recommending that the
Court dismiss Plaintiff's complaint with prejudice.
See Dkt. No. 6 at 7. Plaintiff timely filed
objections to the Report-Recommendation. See Dkt.
No. 7. Presently before the Court is Magistrate Judge
Dancks' Order and Report-Recommendation. See
Dkt. No. 6.
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, 333-34 (N.D.N.Y. 1994));
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 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
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
files specific objections to a magistrate judge's order
and report-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).
Plaintiff sues Defendants under 42 U.S.C. § 1983, but he
does not allege that Defendants violated any particular right
guaranteed by the constitution or federal law. Instead,
Plaintiff alleges that Defendants "fail[ed] to do
[their] official duty." Dkt. No. 1 at 1. Specifically,
he alleges that Defendants (1) used vulgar language towards
Plaintiff; (2) showed a lack of care for handicapped persons
in their home environment; and (3) showed a lack of concern
for Plaintiff's well being and for his reasons for being
at the police department. See Id. Magistrate Judge
Dancks recommended dismissal of Plaintiff's complaint for
Plaintiff failed to allege the violation of a right
guaranteed by the constitution or federal law. See
Dkt. No. 6 at 6. As Magistrate Judge Dancks correctly stated,
"verbal abuse, vulgarity, and even threats are
insufficient to rise to the level of constitutional
violations." Id. (quoting Tafari v.
McCarthy, 714 F.Supp.2d 317, 364 (N.D.N.Y. 2010)).
Additionally, there is no constitutionally protected right
requiring government officials to investigate complaints.
See Id. (citing Rodrigues v. Village of
Larchmont, 608 F.Supp. 467, 472 (S.D.N.Y. 1985)).
Magistrate Judge Dancks also recommended dismissal of the
complaint because, even if Plaintiff had alleged a
constitutional violation, Plaintiff failed to meet the
standard for establishing municipal liability. See
Id. at 4-6. In order to state a claim for municipal
liability under 42 U.S.C. § 1983, a plaintiff must
allege that the "deprivation of his constitutional
rights 'was caused by a government custom, policy, or
usage of the municipality.'" Id. at 5
(quoting Jones v. Town of East Haven, 691 F.3d 72,
80 (2d Cir. 2012)). In this case, Plaintiff does not allege
any facts connecting the behavior of the officers to a
custom, policy, or usage of the City of Utica. See
Dkt. No. 1.
Plaintiff timely filed objections to Magistrate Judge
Dancks' Report-Recommendation, he failed to address
either of the reasons that Magistrate Judge Dancks
recommended dismissal. See Dkt. No. 7. Instead,
Plaintiff simply stated that he "object[s] to th[e]
decision in its entirety, " and he went on to restate
his frustrations with the Utica Police Department.
Id. at 1. Because Plaintiff did not make any
specific objections, the Court has reviewed the
Report-Recommendation for clear error and found none.
Therefore, Plaintiff's complaint is dismissed with
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)). An opportunity to amend is not required,
however, where "the problem with [plaintiffs] 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). In this case, the
Court agrees with Magistrate Judge Dancks that ...