United States District Court, N.D. New York
THERESA A. LOGAN, f/k/a THERESA A. ODEJIMI, Plaintiff,
TOWN OF WINDSOR/NEW YORK MUNICIPAL INSURANCE RECIPROCAL, et al., Defendants.
PLAINTIFF THERESA A. LOGAN, PRO SE
ORDER, REPORT, AND RECOMMENDATION
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
an action brought by pro se plaintiff Theresa A.
Logan, who was formerly known as Theresa A. Odejimi, against
the Town of Windsor, two of its employees, and its insurer.
Although plaintiff's complaint is written on a form
prepared by this court for use in bringing discrimination
actions under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., her claims
do not arise from allegations of discrimination. Instead,
plaintiff complains of injuries she sustained on or about
March 7, 2011, when she was allegedly struck by debris thrown
in her direction by a snowplow operated by the two individual
defendants, who were employees of the Town of Windsor at the
time. In her complaint, plaintiff asserts state common law
assault and battery causes of action.
complaint and accompanying motion for leave to proceed in
forma pauperis ("IFP") have been forwarded to
me for review. Based upon my consideration of those
materials, plaintiff's IFP application is granted, but I
recommend that her complaint be dismissed for lack of subject
matter jurisdiction, with leave to replead.
commenced this action on or about May 18, 2018, by the filing
of a complaint, accompanied by a motion for leave to proceed
IFP. Dkt. Nos. 1, 2. Plaintiff's complaint names Robert
Brinks, Gregg Story, the Town of Windsor, and New York
Municipal Insurance Reciprocal ("NYMIR") as
defendants. Dkt. No. 1 at 1-2. According to her complaint and
accompanying materials, plaintiff was struck by debris thrown
in her direction by a snowplow operated by defendant Brink,
with defendant Story operating as the "wingman," on
March 7, 2011, in the Town of Windsor. Id. at 3-4,
5-11, 19-25. Plaintiff claims that, as a result of that
incident, she has undergone two surgeries to repair injuries
to her lower and upper back. Id.
complaint makes vague references to a state court action
brought as a result of the accident. See, e.g., Dkt.
No. 1 at 6 ("Plaintiff was also forced to represent
herself, 'Pro Se' after the Judge dismissed her
former attorney from her case on May 15, 2015."). As
relief, plaintiff requests the issuance of a writ of
certiorari and restoration of her original lawsuit
in the amount of $209, 000. Id. at 4.
Plaintiff's IFP Application
civil action is commenced in a federal district court, the
statutory filing fee, currently set at $400, must ordinarily
be paid. 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed IFP if it determines
that she is unable to pay the required filing fee. 28 U.S.C.
§ 1915(a)(1). In this instance, because I conclude that
plaintiff meets the requirements for IFP status, her
application for leave to proceed without prepayment of fees
Sufficiency of Plaintiff's Complaint
I have found that plaintiff meets the financial criteria for
commencing this case IFP, I must next consider the
sufficiency of the claims set forth in her complaint in light
of 28 U.S.C. § 1915(e).
1915(e) directs that, when a plaintiff seeks to proceed IFP,
"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). In deciding whether a complaint states
a colorable claim, a court must extend a certain measure of
deference in favor of pro se litigants, Nance v.
Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam),
and extreme 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 address the sufficiency of plaintiff's
allegations, Anderson v. Coughlin, 700 F.2d 37, 41
(2d Cir. 1983). The court, however, also has an overarching
obligation to determine that a claim is not legally frivolous
before permitting a pro se plaintiff's complaint
to proceed. See, e.g., Fitzgerald v.
First East Seventh St. Tenants Corp., 221 F.3d 362, 363
(2d Cir. 2000) (holding that a district court may sua
sponte dismiss a frivolous complaint, notwithstanding
the fact that the plaintiff paid the statutory filing fee).
"Legal frivolity . . . occurs where 'the claim is
based on an indisputably meritless legal theory [such as]
when either the claim lacks an arguable basis in law, or a
dispositive defense clearly exists on the face of the
complaint.'" Aguilar v. United States, Nos.
99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov.
8, 1999) (quoting Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also