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Porter v. Game

United States District Court, E.D. New York

January 9, 2020

JASON PORTER, Plaintiff,

          For Plaintiff: Jason Porter, pro se

         For Defendants: No appearances.


          Joanna Seybert, U.S.D.J.

         On March 11, 2019 incarcerated pro se plaintiff Jason Porter (“Plaintiff”) filed a Complaint in this case together with a motion to proceed in forma pauperis. On April 18, 2019 Plaintiff filed a second Complaint together with a motion to proceed in forma pauperis. (See Jason Porter v. Kristian Barling Green, No. 19-CV-2273.) By Memorandum and Order dated September 27, 2019, (see M&O, D.E. 9), the Court consolidated these two actions into the first-filed docket; dismissed the in forma pauperis Complaints pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1), and granted Plaintiff leave to file an Amended Complaint within thirty (30) days from the date of the M&O. On October 17, 2019, Plaintiff timely filed an Amended Complaint against Kristian Barling Game (“Game”) and Parole Officer Zrake (“Zrake” and together “Defendants”). For the following reasons, the Amended Complaint fails to allege a plausible claim against Defendants and the Amended Complaint is DISMISSED pursuant to 28 U.S.C. §§ 1915(e) (2)(B)(i)-(iii), 1915A(b)(1)-(2).


         Plaintiff's Amended Complaint, brought pursuant to 42 U.S.C. § 1983, continues to allege that Game, a substance abuse counselor at Eastern Long Island Hospital, “create[d] a fraudulent discharge [plan]” and sent it to Zrake at the Suffolk County Parole Office. (Am. Com., D.E. 12, at 1-2.) According to the Amended Complaint, Zrake “manipulated” and “induc[ed]” Game, on November 13, 2018, after Plaintiff had already shown Zrake the original discharge plan, to create a backdated discharge plan that reflected that Plaintiff had been “kicked . . . out of the program on 11/11/18.” (Am. Compl. at 1-2.) Plaintiff claims that Zrake and Game “conspired” to violate Plaintiff's due process right by creating the second, false discharge plan, which was then used as the basis to issue a warrant for Plaintiff's arrest for a parole violation. (Am. Compl. at 2-3.) As a result, Plaintiff claims to have had to undergo “mental health treatment and consume several different physic medication[s].” (Am. Compl. at 3.) Although the original Complaints sought exclusively monetary damages in the total sum of twelve million dollars ($12, 000, 000.00), (see 19-CV-1408, Compl., D.E. 1, ¶ III; 19-CV-2273, Compl., D.E. 1, ¶ III), the Amended Complaint does not seek any relief. (Am. Compl. at 4.)


         I. Application of 28 U.S.C. § 1915

         Having granted Plaintiff's application to proceed in forma pauperis, (see M&O at 6-7), the Court must determine whether the Amended Complaint alleges a plausible claim for relief. Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b). The Court is required to dismiss the action as soon as it makes such a determination. See id. § 1915A(b).

         Courts are obliged to construe the pleadings of a pro se plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). However, a complaint or amended complaint must plead sufficient facts to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted). The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011). While “‘detailed factual allegations'” are not required, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         II. Section 1983

Section 1983 provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .

42 U.S.C. § 1983; accord Rehberg v. Paulk, 566 U.S. 356, 361, 132 S.Ct. 1497, 1501B02, 182 L.Ed.2d 593 (2012). To state a claim under Section 1983, a plaintiff must “‘allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.'” Rae v. Cty. of ...

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