United States District Court, N.D. New York
HENRY E. PITTMAN, also known as Abdus Sabury Fateen Akbary Pittman, Plaintiff,
JEFFREY J. LOW, et al., Defendants.
E. PITTMAN PLAINTIFF, PRO SE
D'Agostino, U.S. District Judge
December 9, 2016, pro se Plaintiff Henry E. Pittman
("Plaintiff") filed a complaint pursuant to 42
U.S.C. § 1983 ("Section 1983") against eleven
named Defendants. See Dkt. No. 1 at 2-4. In
addition, Plaintiff filed an application to proceed in
forma pauperis ("IFP"). See Dkt. No.
2. On May 18, 2017, the Court adopted, in its entirely,
Magistrate Judge Daniel J. Stewart's February 8, 2017
Report-Recommendation and Order in which it was recommended
that Plaintiff's claims against Defendants Low,
Stanzione, Scatucco, and Halperin be dismissed with
prejudice, and that Plaintiff's remaining claims be
dismissed with leave to replead. See Dkt. No. 10 at
10. Specifically, the Court dismissed Plaintiff's claim
for malicious prosecution because there was no allegation
that the prosecution had been terminated in Plaintiff's
favor. See Dkt. No. 17 at 6. In addition,
Plaintiff's claim for violation of the right to access
courts was dismissed because there was no allegation of an
actual injury. See id.
15, 2017, Plaintiff amended his complaint. See Dkt.
No. 19. On July 31, 2017, Magistrate Judge Stewart issued a
second Report-Recommendation and Order in which he
recommended the complaint be dismissed under 28 U.S.C.
§§ 1915(e) and 1915A because Plaintiff had not
cured the deficiencies found by the Court in his original
complaint. See Dkt. No. 22. Further, Magistrate
Judge Stewart found that Plaintiff failed to comply with
Rules 8 and 10 of the Federal Rules of Civil Procedure.
may grant a motion to proceed in forma pauperis
("IFP") if the party is "unable to pay"
the standard fee for commencing an action. 28 U.S.C. §
1915(a)(1). When a plaintiff seeks to proceed IFP, "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.
§ 1915(e)(2)(B). "Although, the court has the duty
to show liberality towards pro se litigants, . . . there is a
responsibility on the court to determine that a claim has
some arguable basis in law before permitting a plaintiff to
proceed with an action in forma pauperis." Moreman
v. Douglas, 848 F.Supp. 332, 333-34 (N.D.N.Y. 1994)
(internal citations omitted); see, e.g., Thomas
v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam)
(holding that a district court has the power to dismiss a
complaint sua sponte if the complaint is frivolous).
survive dismissal for failure to state a claim, a party need
only present a claim 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) (citation omitted). While Rule 8(a)
of the Federal Rules of Civil Procedure, which sets forth the
general rules of pleading, "does not require detailed
factual allegations, . . . it demands more than an
unadorned" recitation of the alleged misconduct.
Id. (citations and quotation omitted). In
determining whether a complaint states a claim upon which
relief may be granted, "the court must accept the
material facts alleged in the complaint as true and construe
all reasonable inferences in the plaintiff's favor."
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.
1994) (citation omitted). However, "the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions."
Iqbal, 556 U.S. at 678. "Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id.
party files specific objections to a magistrate judge's
order and report-recommendation, the district court
"make[s] a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1)(C). However, "[g]eneral or conclusory
objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for
clear error." O'Diah v. Mawhir, No.
9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011)
(citations and footnote omitted). After the appropriate
review, "the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1)(C).
litigant's failure to file objections to a magistrate
judge's report and recommendation, even when that
litigant is proceeding pro se, waives any challenge
to the report on appeal. See Cephas v. Nash, 328
F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule,
a party's failure to object to any purported error or
omission in a magistrate judge's report waives further
judicial review of the point" (citation omitted)). A
pro se litigant must be given notice of this rule;
notice is sufficient if it informs the litigant that the
failure to timely object will result in the waiver of further
judicial review and cites pertinent statutory and civil rules
authority. See Frank v. Johnson, 968 F.2d 298, 299
(2d Cir. 1992); Small v. Sec'y of Health and Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a
pro se party's failure to object to a report and
recommendation does not waive his right to appellate review
unless the report explicitly states that failure to object
will preclude appellate review and specifically cites 28
U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e)
of the Federal Rules of Civil Procedure).
present matter, Magistrate Judge Stewart provided Plaintiff
adequate notice that he was required to file any objections
to the Report-Recommendation and Order, and informed him that
failure to object to any portion of the report would preclude
his right to appellate review. See Dkt. No. 22 at
3-4. Specifically, Magistrate Judge Stewart informed
Plaintiff that "FAILURE TO OBJECT TO THIS
REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85
(2d Cir. 1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir. 1989)); see
also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. &
6(a)." See Id. Therefore, Magistrate Judge
Stewart clearly provided Plaintiff with sufficient notice of
the consequences of failing to object to the
Report-Recommendation and Order. In addition, Plaintiff has
requested and the Court has granted multiple requests to
extend the time to file objections, but Plaintiff has failed
to do so. See Dkt. Nos. 24, 26, 28, 30, 32.
Magistrate Judge Stewart correctly found, Plaintiff's
Amended Complaint merely restates the same set of events
contained in the original Complaint without addressing the
deficiencies in his claims identified by the May 18, 2017
Court's Order. See Dkt. No. 17. As for the
malicious prosecution claim, Plaintiff must show:
"'(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the
proceeding in plaintiff's favor; (3) lack of probable
cause for commencing the proceeding; and (4) actual malice as
a motivation for defendant's actions.'"
Manganiello v. City of New York, 612 F.3d 149, 161
(2d Cir. 2010) (quoting Murphy v. Lynn, 118 F.3d
938, 947 (2d Cir. 1997)) (other citations omitted). In this
case, Plaintiff has not alleged that the prosecution against
him has been terminated in his favor. See Dkt. No.
the violation of the right to access courts, "a
plaintiff must demonstrate that a defendant caused
'actual injury,' i.e., took or was
responsible for actions that 'hindered [a
plaintiff's] efforts to pursue a legal claim.'"
Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997)
(quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)).
"Moreover, [plaintiffs] must show 'that a
nonfrivolous legal claim ha[d] been frustrated or was being
impeded' due to the action or inaction of prison
officials." Benjamin v. Kerik, 102 F.Supp.2d
157, 162 (S.D.N.Y. 2000) (quoting Lewis, 518 U.S. at
353). In this case, again, Plaintiff has failed to allege an
actual injury. See Dkt. No. 19. Therefore,
Magistrate Judge Stewart correctly concluded that Plaintiff
failed to allege a plausible cause of action.
Magistrate Judge Stewart correctly found that Plaintiff's
Amended Complaint is not in compliance with Rules 8 and 10 of
the Federal Rules of Civil Procedure. Plaintiff's Amended
Complaint does not provide "a short and plain statement
of the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). In addition,
Plaintiff's Amended Complaint does not give proper notice
to Defendants of what the claims are. See Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (noting that
Federal Rule of Civil Procedure 8(a)(2) requires the
complaint "to 'give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests'"). Further, the Amended Complaint does not
set "its claims . . . in numbered paragraphs, each
limited as far as practicable to a single set of
circumstances." See Fed. R. Civ. P. 10(b).
carefully reviewed Magistrate Judge Stewart's
Report-Recommendation and Order, Plaintiffs submissions and
the applicable law, and for the above-stated reasons, the
that Magistrate Judge Stewart's Report-Recommendation and
Order (Dkt. No. 22) is ADOPTED in ...