United States District Court, N.D. New York
LEWIS Plaintiff, Pro Se
REPORT-RECOMMENDATION AND ORDER
J. STEWART United States Magistrate Judge
Clerk has sent to the Court for review a Complaint filed by
pro se Plaintiff Shawn Lewis. Dkt. Nos. 1, Compl
& 1-1, Suppl. in Support of Compl. Plaintiff has not paid
the filing fee and has submitted two Applications to Proceed
In Forma Pauperis (“IFP”) that are
substantively the same. Dkt. Nos. 2 & 5, IFP Apps. By
separate Order, dated January 17, 2018, this Court granted
Plaintiff's Applications to Proceed IFP. Now, in
accordance with 28 U.S.C. § 1915(e), the Court will
sua sponte review the sufficiency of the Complaint.
1915(e) of Title 28 of the United States Code directs that,
when a plaintiff seeks to proceed in forma pauperis,
“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.
reviewing a pro se complaint, a court has a duty to
show liberality toward pro se litigants, see
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and
should exercise “extreme caution . . . in ordering sua
sponte dismissal of a pro se complaint before the
adverse party has been served and both parties (but
particularly the plaintiff) have had an opportunity to
respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (emphasis in original) (citations omitted).
Nonetheless, the court has a responsibility to determine that
a claim is not frivolous before permitting it to proceed.
Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991)
(“Section 1915(d) gives the court the power to dismiss
a pro se complaint sua sponte if the complaint is
frivolous.”). A complaint “is frivolous where it
lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although the court should construe the factual allegations in
the light most favorable to the plaintiff, “the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions.” Id. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at
555). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged - but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
that “are so vague as to fail to give the defendants
adequate notice of the claims against them” are subject
to dismissal. Sheehy v. Brown, 335 F. App'x 102,
104 (2d Cir. 2009). Indeed, a complaint cannot be maintained
against a defendant who is listed in the caption, but against
whom no facts are alleged in the body of the complaint.
Cipriani v. Buffardi, 2007 WL 607341, at *1
(N.D.N.Y. Feb. 20, 2007) (citation omitted); see also
Casino v. Rohl, 2014 WL 5425501, at *6 (E.D.N.Y. Oct.
a court's initial review of a complaint under §
1915(e) must encompass the applicable standards of the
Federal Rules of Civil Procedure. Rule 8 of the Federal Rules
of Civil Procedure provides that a pleading must contain:
(1) a short and plain statement of the grounds for the
court's jurisdiction . . .;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or ...