United States District Court, E.D. New York
Plaintiff: Jason Porter, pro se
Defendants: No appearances.
MEMORANDUM & ORDER
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),
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.)
Application of 28 U.S.C. § 1915
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).
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).
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 ...