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Manosh v. Guards State Office Building

United States District Court, N.D. New York

June 21, 2018


          MICHAEL C. MANOSH Plaintiff, pro se.



         The Clerk has sent to the court a civil rights complaint, together with an application to proceed in forma pauperis (“IFP”), filed by pro se plaintiff, Michael C. Manosh. (Dkt. Nos. 1, 2).

         Plaintiff has filed his complaint, using a form for civil rights actions, brought pursuant to 42 U.S.C. § 1983. (Complaint (“Compl.”) (Dkt. No. 1). In his complaint, plaintiff alleges that the “Guards” at the State Office Building in Utica, New York would not give him “access to” the building for “reasons unknown.” (Compl. ¶ 4). Plaintiff also states that one of the guards “assausted [sic]” him, threw plaintiff's Military Police badge on the sidewalk, and pushed him outside the door. (Id.) Plaintiff states that this is “Treason!” (Id.) Plaintiff claims that he is “asking the Court System for 30 million dollar[s]” from the “State Comptroller” because of the “treason.”

         I. IFP Application

         The court may authorize “the commencement, prosecution or defense of any suit . . . without prepayment of fees . . .” by an individual who submits an affidavit showing that he or she is “unable to pay such fee . . . .” 28 U.S.C. § 1915(a)(1). The cost for filing an action in the Northern District of New York is $450.00. In the affidavit submitted by plaintiff in this action, he states that he is employed, but seems to estimate that he receives only 10% of the money that he earns. He does not explain the reason for this low percentage. (Dkt. No. 2). Plaintiff also states that he has $4000.00 in the bank, and that he supports his wife of 25 years, but that he is “debt free.” (Id. at 2).

         Unfortunately, with steady employment and $4000 in the bank, this court finds that plaintiff is not financially eligible to proceed without the payment of fees. If the plaintiff wishes this case to proceed, he must pay the $450.00 filing fee and will also be responsible for other fees that he may incur in this action, including copying and/or witness fees.[1]

         In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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).

         In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

         To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).

         II. Section 1983

         A. Generally

         Section 1983 provides, in relevant part, that

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .

42 U.S.C. § 1983. Section 1983 itself does not create substantive rights, rather, it provides a “‘method for vindicating federal rights elsewhere conferred.'” Fiedler v. Incandela, 222 F.Supp.3d 141, 156 (E.D.N.Y. 2016) (quoting Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). In order to state a claim under section 1983, the plaintiff must allege the deprivation of rights, privileges, or immunities secured by the Constitution or other laws, committed by a person acting under color of state law. Id. (quoting Hawkins v. Nassau Cty. Corr. Facility, 781 F.Supp.2d 107, 111 (E.D.N.Y. 2011).

         Plaintiff in this case has filed his complaint on a form that is used for claims brought under 42 U.S.C. § 1983, but he has cited no constitutional or statutory bases for jurisdiction. The court will review plaintiff's complaint to determine what claims he could possibly be attempting to bring and turn to a consideration of the plaintiff's complaint under the above standards.[2]

         B. Color of State Law

         1. ...

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