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Logan v. Town of Windsor/New York Municipal Insurance Reciprocal

United States District Court, N.D. New York

June 26, 2018

THERESA A. LOGAN, f/k/a THERESA A. ODEJIMI, Plaintiff,
v.
TOWN OF WINDSOR/NEW YORK MUNICIPAL INSURANCE RECIPROCAL, et al., Defendants.

          FOR PLAINTIFF THERESA A. LOGAN, PRO SE

          FOR DEFENDANTS NONE

          ORDER, REPORT, AND RECOMMENDATION

          DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

         This is 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.

         Plaintiff's 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.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff's 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.[1] Id. at 4.

          II. DISCUSSION

          A. Plaintiff's IFP Application

         When a 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).[2] In this instance, because I conclude that plaintiff meets the requirements for IFP status, her application for leave to proceed without prepayment of fees is granted.[3]

         B. Sufficiency of Plaintiff's Complaint

         Because 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).

         Section 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 ...


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