United States District Court, W.D. New York
DECISION AND ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE
October 21, 2016, the pro se plaintiff, Calla Brewster, filed
a complaint asserting claims under 42 U.S.C. Â§ 1983 on behalf
of herself and her children, T.B. and D.G. Docket Item 1. She
also moved to proceed in forma pauperis (that is, as a person
who should have the prepayment of the ordinary filing fee
waived because she cannot afford it) and asked this Court to
appoint counsel for her. Docket Items 2, 3, 6 and 7. On
October 24, 2019, this Court granted Brewster's motion to
proceed in forma pauperis, denied her motions to appoint
counsel, and granted her permission to amend her complaint
because her claims were insufficiently pled. Docket Item 8.
On December 6, 2019, Brewster filed an amended complaint only
on her own behalf and moved for a preliminary injunction in
relation to her claims. Docket Item 9.
U.S.C. section 1915 "provide[s] an efficient means by
which a court can screen for and dismiss legally insufficient
[pro se] claims." Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007). Dismissal is not appropriate under
sectionl915(e)(2), however, if the plaintiff has made
"colorable claim[s]." See Benitez v.
Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) ("Sua
sponte dismissal of a pro se complaint prior to service of
process is a draconian device which is warranted only when
the complaint lacks an arguable basis either in law or in
fact [or is] frivolous on its face or wholly
insubstantial." (citations omitted)); see also Pino
v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (explaining that
dismissal under Federal Rule of Civil Procedure Rule 12(b)(6)
may still be appropriate notwithstanding a court's
earlier finding that the complaint was not
"frivolous" for purposes of section 1915(e)(2)).
evaluating the complaint, the court must accept all the
plaintiff's factual allegations as true and draw all
inferences in the plaintiff's favor. See Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003) (per curiam);
King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999).
"Specific facts are not necessary," and the
plaintiff "need only 'give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests.'" Erickson v. Pardus, 551 U.S. 89,
93 (2007) (alteration in original) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
state a valid claim under section 1983, "the plaintiff
must allege that the challenged conduct (1) was attributable
to a person acting under color of state law, and (2) deprived
the plaintiff of a right, privilege, or immunity secured by
the Constitution or laws of the United States."
Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir.
1997) (citation omitted).
Defendants Reed, Doran, Fegley, Grant, Jensen, Sorgen,
Northrup, Williams, Odin, and Catholic Charities of the
lists Kari Wilferth, Fred Reed, Craig Doran, Patrick Fegley,
Matt Grant, Charlene Jensen, Tiffany Sorgen, Karen Northrup,
Christine Williams, Alice Odin, and Catholic Charities of the
Fingerlakes as defendants in the caption of the complaint.
But she fails to allege in the body of the complaint that any
of these defendants-with the exception of Wilferth-committed
specific acts giving rise to a constitutional claim.
Consequently, Brewster has failed to state a claim upon which
relief may be granted against any defendant except Wilferth.
See Harris v. Snyder, 2007 WL 495312, *2 (D. Del.
Feb. 12, 2007) ("[T]here are no allegations in the
complaint that set forth any acts or omissions by [the
defendant] that deprived [the plaintiff] of a federal right.
Consequently, the complaint fails to state a claim upon which
relief may be granted."). For that reason and because
this Court already has provided Brewster with an opportunity
to amend her complaint to "include[ ], in sufficient
detail, each defendant's involvement with and
responsibility for her injuries," see Docket Item 8 at
4, the amended complaint is dismissed as against defendants
Reed, Doran, Fegley, Grant, Jensen, Sorgen, Northrup,
Williams, Odin, and Catholic Charities of the Fingerlakes.
respect to defendant Wilferth, Brewster alleges that
Wilferth, a caseworker with the Ontario County Department of
Social Services, "attacked [her] inside [her] home, then
raided the home, abused [her], and stalked [her] for several
years and continues to do so today." Docket Item 9 at 6.
The Court construes these allegations as claiming that
Wilferth violated Brewster's Fourth and Fourteenth
Amendment rights and committed the New York torts of assault
Fourth Amendment Search Claims
Fourth Amendment offers protection from only unreasonable
searches and seizures. See U.S. Const, amend. IV; United
States v. Elliott, 50 F.3d 180, 185 (2d Cir.1995).
"[A]ll agencies of government are governed by the
unreasonable searches and seizures provision of the Fourth
Amendment." Tenenbaum v. Williams, 193 F.3d
581, 603 (2d Cir. 1999). Unreasonableness is gauged in part
by the degree of expectation of privacy and the intrusiveness
of the search. See, e.g., United States v. Lovelock,
170 F.3d 339, 345 (2d Cir. 1999) (noting reduced privacy
expectations, for example, in situations where a person
occupies the premises jointly with another); Anobile v
Pelligrino, 303 F.3d 107, 119-20 (2d Cir 2002) (adding
that "[p]rivacy expectations are high in homes, or even
Brewster has not alleged that Wilferth lacked legal authority
to enter her home, she has failed to state a claim for an
unconstitutional search. Accordingly, this claim is
Fourteenth Amendment Excessive Force and New York ...