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Pendell v. United States Secret Service

United States District Court, N.D. New York

April 9, 2018

PERRY PENDELL, Plaintiff,
v.
UNITED STATES SECRET SERVICE and KIM CAMPBELL, Defendants.

          PERRY PENDELL PLAINTIFF, PRO SE

          ORDER AND REPORT-RECOMMENDATION

          Tnerese Wiley Dancks United States Magistrate Judge

         The 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. 4, 6.)

         I. IFP APPLICATION

         A court 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 granted.[1]

         II. INITIAL SCREENING

         Having 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).

         In 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).

         Where a 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).

         III. COMPLAINT

         Generally, 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.[2]) Plaintiff seeks declaratory and injunctive relief, along with costs. Id. at 15-16.

         As 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.

         On June 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).

         In 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 ...


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