United States District Court, N.D. New York
PENDELL PLAINTIFF, PRO SE
ORDER AND REPORT-RECOMMENDATION
Tnerese Wiley Dancks United States Magistrate Judge
Clerk has sent to the Court for initial review a pro
se complaint filed by Plaintiff Perry Pendell, an inmate
in custody of the New York State Department of Corrections
and Supervision (“DOCCS”), under the Freedom of
Information Act (“FOIA”), 5 U.S.C. §
552(a)(4)(B), against Defendants United States Secret Service
(“USSS”) and Kim Campbell, Special Agent in
Charge (“SAIC”). (Dkt. No. 1.) Plaintiff, who has
not paid the filing fee for this action, has filed an
application for leave to proceed in forma pauperis
(“IFP Application”), along with the required
Inmate Authorization Form. (Dkt. Nos. 2, 3.) Also before the
Court is Plaintiff's motion for appointment of counsel,
along with a letter request filed April 4, 2018. (Dkt. Nos.
may grant in forma pauperis status if a party
“is unable to pay” the standard fee for
commencing an action. 28 U.S.C. § 1915(a)(1) (2006).
After reviewing Plaintiff's IFP Application (Dkt. No. 2),
along with the required Inmate Authorization Form (Dkt. No.
3), the Court finds that Plaintiff meets this standard.
Therefore, Plaintiff's IFP Application is
found that Plaintiff meets the financial criteria for
commencing this case in forma pauperis, the Court
must consider the sufficiency of the allegations set forth in
the complaint in light of 28 U.S.C. §§ 1915(e) and
1915A. Section 1915(e) directs that when a plaintiff proceeds
in forma pauperis, “the court shall dismiss
the case at any time if the court determines that . . . the
action . . . (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)(i)-(iii).
Likewise, under § 1915A, a court must, as soon as
practicable, sua sponte review “a complaint in
a civil action in which a prisoner seeks redress from a
governmental entity or officer or employees of a governmental
agency” and must “identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint (1) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A; see also Carr v.
Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam).
performing this screening of the complaint, the court has the
duty to show liberality towards pro se litigants.
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990)
(per curiam). “[E]xtreme caution should be exercised in
ordering sua sponte dismissal of a pro se complaint before
the adverse party has been served and [the] parties ... have
had an opportunity to respond. Anderson v. Coughlin,
700 F.2d 37, 41 (2d Cir.1983).
pro se complaint fails to state a cause of action,
the court generally “should not dismiss 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.” Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation and internal quotation marks
omitted). An opportunity to amend is not required where
“the problem with [the plaintiff's] causes of
action is substantive” such that “better pleading
will not cure it.” Id. (citation omitted).
Plaintiff alleges Defendants (1) failed to reply to his FOIA
request in a reasonable amount of time; (2) failed to reply
to his administrative appeal in a timely manner; and (3)
improperly withheld and refused to produce the document
requested by Plaintiff. (Dkt. No. 1 at 12-15.) Plaintiff seeks
declaratory and injunctive relief, along with costs.
Id. at 15-16.
background for the complaint, Plaintiff was arrested on April
5, 2013, in Columbia County, New York by the Columbia County
Sheriff's Office (“CCSO”). Id. at 4.
On April 11, 2013, CCSO applied for and obtained a search
warrant for electronic items and media storage devices that
were seized from Plaintiff and for the records concerning a
cellular telephone number. Id.; Dkt. No. 1-1 at 2-5.
CCSO sought the assistance of USSS to perform the electronic
analysis of the seized items. (Dkt. No. 1 at 4-5.) On April
17, 2013, CCSO delivered the seized electronics to USSS for
analysis. Id. at 5. Thereafter, on April 18, 2013,
CCSO sought and obtained written permission to search the
alleged victim's electronics by way of consent.
Id.; Dkt. No. 1-1 at 13-14. USSS Special Agents Lupe
and Leege searched and extracted information from the various
electronic items and media storage devices. (Dkt. No. 1 at
6.) The information extracted by USSS was produced during
discovery, some of which was presented during Plaintiff's
public criminal trial. Id.
25, 2014, Plaintiff was convicted in Columbia County of Rape
in the Second Degree (two counts), Criminal Sexual Act in the
Second Degree, Possessing a Sexual Performance of a Child,
and Criminal Solicitation in the Second Degree. Id.
at 7; Dkt. No. 1-1 at 26, 28; see also
http://nysdoccslookup.doccs.ny.gov (DIN 14A3835) (last
visited Apr. 6, 2018). Plaintiff was sentenced to twenty
years and his earliest conditional release date is May 19,
2030. See http://nysdoccslookup.doccs.ny.gov (DIN
14A3835) (last visited Apr. 6, 2018).
February of 2016, Plaintiff wrote to USSS pursuant to FOIA
requesting information pertaining to any and all extraction
reports performed on all phones, computers, and storage
devices involved in the case of Perry Pendell. (Dkt. No. 1 at
7-9; see also Dkt. No. 1-1 at 31-48.)
Plaintiff's FOIA request was assigned File ...