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Brewster v. Wilferth

United States District Court, W.D. New York

December 31, 2019

CALLA BREWSTER, Plaintiff,
v.
KARI WILFERTH, et al., Defendants.

          DECISION AND ORDER

          LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

         On October 21, 2016, the pro se plaintiff, Calla Brewster, filed a complaint asserting claims under 42 U.S.C. § 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.

         I. SCREENING

         28 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)).

         In 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)).

         To 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).

         A. Defendants Reed, Doran, Fegley, Grant, Jensen, Sorgen, Northrup, Williams, Odin, and Catholic Charities of the Fingerlakes

         Brewster 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.

         B. Defendant Wilferth

         With 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 and battery.

         1. Fourth Amendment Search Claims

         The 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 private rooms").

         Because 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 dismissed.

         C. Fourteenth Amendment Excessive Force and New York ...


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