United States District Court, N.D. New York
MICHAEL C. MANOSH, Plaintiff,
GUARDS STATE OFFICE BUILDING, Defendants.
MICHAEL C. MANOSH Plaintiff, pro se.
ORDER AND REPORT-RECOMMENDATION
T. BAXTER, UNITED STATES MAGISTRATE JUDGE.
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).
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.”
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).
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.
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).
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).
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).
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).
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
Color of State Law