United States District Court, N.D. New York
WILLIAM G. SCHISLER, SR., Plaintiff,
RONALD RIZIO and SHERRIE RIZIO, Defendants.
WILLIAM G. SCHISLER, SR. Plaintiff Pro Se
D'Agostino U.S. District Judge
March 17, 2017, pro se Plaintiff William G.
Schisler, Sr. filed the present civil rights complaint
pursuant to 42 U.S.C. § 1983 ("Section 1983")
stating three causes of action against his former neighbors,
Defendants Ronald and Sherrie Rizio. See Dkt. No. 1.
Plaintiff seeks monetary relief in the amount of $500, 000.
See id. at 6. Additionally, Plaintiff filed a motion
for leave to proceed in forma pauperis
("IFP"). See Dkt. No. 2.
March 24, 2017, Magistrate Judge Baxter issued an Order and
Report-Recommendation granting Plaintiff's application to
proceed IFP for purposes of filing only. See Dkt.
No. 5 at 9-10. Magistrate Judge Baxter recommended the Court
dismiss Plaintiff's complaint in its entirety with
prejudice due to Plaintiff's failure to state a claim.
See id. at 10. Currently before the Court is
Magistrate Judge Baxter's Order and
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))
(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 Baxter's Order and
Report-Recommendation. 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 three causes of action against
Defendants: (1) "intentional infliction of emotional
distress and mental anguish of a hearing impaired handicapped
individual;" (2) "mental anguish;" and (3)
"pain suffering." See Dkt. No. 1 at 5. In
support of his claims, Plaintiff alleges that Defendants
"deliberately and maliciously park[ed] in front of"
Plaintiff's former home to prevent handicapped
individuals from visiting Plaintiff's residence.
Id. at 4. Further, Plaintiff alleges that
"[o]ur visitors and guest[s] would have to park [half]
way down the street which . . . is totally not fair and
illegal!" Id. In addition, Plaintiff alleges
that Defendants harassed Plaintiff and his family by
"go[ing] out of their way to be rude . . . and
inconsiderate." Id. at 2. Specifically,
Plaintiff alleges that Defendants "wave[d] a golf
club" in Plaintiff's face, id. at 3, and
that Defendants "threatened to fight [P]laintiff
'tooth and nail' over obtaining a permit for a
driveway at . . . [P]laintiff's former home, which was
next-door to . . . [Defendant's] home." Dkt. No. 5
at 2-3 (quoting Dkt. No. 1 at 2). Upon reviewing
Plaintiff's allegations, Magistrate Judge Baxter
recommended that the Court dismiss Plaintiff's complaint
in its entirety because Plaintiff failed to allege facts
plausibly suggesting that Defendants acted "under color
of state law" in performing the alleged conduct.
See Dkt. No. 5 at 6.
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
"merely private conduct, no matter how discriminatory or
wrongful, " does not constitute state action under
Section 1983, the Court finds that Magistrate Judge Baxter
correctly determined that Plaintiff's Section 1983
complaint against Defendants should be dismissed for failing
to state a claim. Am. Mfrs. Mt. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (citation and internal
quotation marks omitted). Therefore, the Court dismisses
Plaintiff's complaint in its entirety.
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)
("The court should freely give leave when justice so
requires"); Mathon v. Marine Midland Bank,
N.A., 875 F.Supp. 986, 1003 (E.D.N.Y. 1995)
(permitting leave to replead where the court could "not
determine that the plaintiffs would not, under any
circumstances, be able to allege a civil RICO
conspiracy"). 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 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 omitted).
a court should generally permit a pro se litigant
leave to amend at least once, the Court finds that amendment
is inappropriate in this case. The Court agrees with
Magistrate Judge Baxter that Plaintiff cannot plead the
requisite state action needed to support a Section 1983 claim
against the named Defendants. See Dkt. No. 5 at 6-7
("The Rizios are clearly private individuals and not
subject to suit under section 1983"). Therefore,
Plaintiffs complaint is dismissed in its entirety with
carefully reviewing Plaintiffs submissions, Magistrate Judge
Baxter's March 24, 2017 Order and Report-Recommendation
and the applicable law, and ...