United States District Court, N.D. New York
KEVIN C. SMURPHAT, II, Plaintiff,
MICHAEL HOBB, Parole Officer, et al. Defendants.
C. Smurphat, II 10-A-2976 Franklin County Correctional
Facility Plaintiff pro se
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
In Forma Pauperis
pro se Kenneth C. Smurphat, II, commenced this
action on July 8, 2019, with the filing of a complaint and an
application to proceed in forma pauperis (“IFP”).
Dkt. No. 1 (“Compl.”), Dkt. No. 2. After
reviewing plaintiff's application, the undersigned
concludes that plaintiff may properly proceed IFP for
purposes of filing. The undersigned must now assess
plaintiff's complaint pursuant to 28 U.S.C. §
1915(e) of Title 28 of the United States Code 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 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). Thus,
it is a court's responsibility to determine that a
plaintiff may properly maintain his complaint before
permitting him to proceed with his action.
guidelines are set forth in the Federal Rules of Civil
Procedure. Specifically, Rule 8 provides that a pleading
which sets forth a claim for relief shall contain, inter
alia, "a short and plain statement of the claim
showing that the pleader is entitled to relief."
See Fed.R.Civ.P. 8 (a)(2). "The purpose . . .
is to give fair notice of the claim being asserted so as to
permit the adverse party the opportunity to file a responsive
answer, prepare an adequate defense and determine whether the
doctrine of res judicata is applicable." Flores v.
Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal
quotation marks and citations omitted). Rule 8 also requires
the pleading to include:
(1) a short and plain statement of the grounds for the
court's jurisdiction . . .;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought . . . .
Fed. R. Civ. P. 8(a). Although "[n]o technical form is
required," the Federal Rules make clear that each
allegation contained in the pleading "must be simple,
concise, and direct." Id. at 8(d).
Rule 10 of the Federal Rules provides in pertinent part that:
[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances. A later pleading may refer by number to
a paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence - and each defense other than a denial - must be
stated in a separate count or defense.
Fed. R. Civ. P. 10(b). This serves the purpose of
"provid[ing] an easy mode of identification for
referring to a particular paragraph in a prior
pleading[.]" Flores, 189 F.R.D. at 54 (internal
quotation marks and citations omitted).
deciding whether a complaint states a colorable claim, a
court must extend a measure of deference to pro se
litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d
Cir.1990) (per curiam), also referred to as “special
solicitude.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006). However, the
court also has an 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 E. Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir.
2000). A complaint that fails to comply with the pleading
requirements "presents far too a heavy burden in terms
of defendants' duty to shape a comprehensive defense and
provides no meaningful basis for the Court to assess the
sufficiency of their claims." Gonzales v. Wing,
167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second Circuit
has held, "[w]hen a complaint does not comply with the
requirement that it be short and plain, the court has the
power, on its own initiative . . . to dismiss the
complaint." Salahuddin v. Cuomo, 861 F.2d 40,
42 (2d Cir. 1988) (citations omitted). However,
"[d]ismissal . . . is usually reserved for those cases
in which the complaint is so confused, ambiguous, vague, or
otherwise unintelligible that its true substance, if any, is
well disguised." Id. (citations omitted). In
such cases of dismissal, particularly when reviewing a
pro se complaint, the court generally affords the
plaintiff an opportunity amend the complaint as long as there
is a possibility that an amendment would be able to cure the
identified defects. See Simmons v. Abruzzo, 49 F.3d
83, 86-87 (2d Cir. 1995). A court should not dismiss a
complaint if the plaintiff has stated "enough facts to
state a claim to relief 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).