United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn Senior U.S. District Judge.
plaintiff Scott Myers brings this complaint against the
Municipality of Greene County and individual defendants Shaun
Groden, Ed Kaplan, Kira Pospesel, and Patrick Linger. Dkt.
No. 1 (“Complaint”); 9 (“Amended
Complaint”). After granting Plaintiff's motion for
leave to proceed in forma pauperis (“IFP”), the
Honorable Christian F. Hummel, U.S. Magistrate Judge reviewed
the Amended Complaint under 28 U.S.C. § 1915(e)(2)(B)
and recommended that the Court dismiss all of Plaintiff's
claims. Dkt. No. 14 (“Report-Recommendation”) at
26- 28. Plaintiff objected. Dkt. No. 16
(“Objections”). For the reasons that follow, the
Report-Recommendation is adopted in part and rejected in
facts and allegations in this case were detailed in the
Report-Recommendation, familiarity with which is assumed. In
short, Plaintiff asserts that officials in Greene County-and
particularly County Attorney Ed Kaplan-committed a variety of
constitutional violations against him, largely in response to
his vociferous opposition to a proposed Greene County jail.
See Generally Am. Compl. Plaintiff also repeatedly
states that the September 11, 2001 attacks rendered his
apartment in lower Manhattan uninhabitable, and suggests that
Defendants have targeted him based on his status as an
“internally displaced refugee.” See Am.
Compl. at 6; Obj. at 6.
Hummel construed Plaintiff's Complaint and Amended
Complaint to assert the following claims: (1)
False arrest, false imprisonment, and malicious prosecution
claims against Kaplan; (2) First and Fourteenth Amendment
claims against Kaplan based on Kaplan's denial of
Plaintiff's Freedom of Information Law
(“FOIL”) requests; (3) First Amendment claims
against Kaplan based on Kaplan's opposition to
Plaintiff's applications for poor person relief; (4)
First Amendment claims against Kaplan based on Kaplan's
role in seeking an order of protection against Plaintiff and
blocking Plaintiff's emails; (5) a claim that Kaplan
“aided an eviction” of Plaintiff; (6) Unspecified
constitutional claims under the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments against Groden, Kaplan, Pospesel,
and Linger; and (7) a Monell claim against Greene
County. R. & R. at 26-27.
Hummel recommended dismissing with prejudice the First and
Fourteenth Amendment claims against Kaplan based on the
denial of Plaintiff's FOIL requests and the First
Amendment claims against Kaplan based on the denial of
Plaintiff's application for poor person relief.
Id. at 26. Judge Hummel recommended dismissing all
other claims without prejudice and with an opportunity to
amend. Id. at 26-28.
filed his Objections on August 6, 2019. Objs. As a
preliminary matter, these Objections were untimely. The
Report-Recommendation advised Plaintiff that, as of the July
12, 2019 date of decision, he had fourteen days to file
written objections, R. & R. at 28, and factoring in
Plaintiff's pro se status, the Court set an objection
deadline of July 29, 2019. However, given Plaintiff's pro
se status, the Court will consider his Objections
nonetheless. See Brown v. Outhouse, No. 07-CV-1169,
2009 WL 1652211, at *1 (N.D.N.Y. June 10, 2009) (considering
pro se plaintiff's untimely objections); Garcia v.
Griffin, No. 16-CV-2584, 2019 WL 4917183, at *3
(S.D.N.Y. Oct. 4, 2019) (same).
Plaintiff's filing objects to several of the Magistrate
Judge's recommendations, it also purports to narrow the
scope of his claims and to add and drop defendants. Objs. at
1, 4, 8. Plaintiff also states, however, that “[a]
modified complaint will be filed shortly.” Id.
at 3. Thus, the Court does not construe Plaintiff's
Objections as a sort of objection-second amended complaint
hybrid, but rather construes the filing as objections that
preview a potentially forthcoming amended complaint. To date,
Plaintiff has not filed a second amended complaint.
§ 1915 Review
plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time” if the action: “(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, even if a plaintiff meets
the financial criteria to commence an action IFP, it is the
court's responsibility to determine whether the plaintiff
may properly maintain the complaint before permitting the
plaintiff to proceed IFP. See id.
Court must review pro se complaints liberally, see Nance
v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam),
and should exercise “extreme caution . . . in ordering
sua sponte dismissal of a pro se complaint before the adverse
party has been served and both parties (but particularly the
plaintiff) have had an opportunity to respond.”
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983)
(internal citations omitted). Therefore, 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) (citing
Twombly, 550 U.S. at 556). Although the Court should
construe the factual allegations in the light most favorable
to the plaintiff, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). Rule 8 “demands more than an unadorned,
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). Thus, a pleading that only “tenders naked
assertions devoid of further factual enhancement” will
not suffice. Id. (internal quotation marks and
fourteen days after a party has been served with a copy of a
magistrate judge's report-recommendation, the party
“may serve and file specific, written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b); L.R. 72.1(c). If objections are timely filed, a court
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b). However, if no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere
reiteration of an argument made to the magistrate judge, a
district court need review that aspect of a
report-recommendation only for clear error. Barnes v.
Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y.
Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301,
306-07, 306 n.2 (N.D.N.Y. 2008), abrogated on other
grounds by Widomski v. State Univ. of N.Y. at Orange,
748 F.3d 471 (2d Cir. 2014)). “Even a pro se
party's objections to a Report and Recommendation must be
specific and clearly aimed at particular findings in the
magistrate's proposal.” Machicote v.
Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2
(S.D.N.Y. Aug. 25, 2011). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”
Objections, Plaintiff states, “I'm focusing
singularly on the access to government (1st
Amendment).” Obj. at 1; see also id. at 4
(“To save court resources consistent with Judge
Hummel's lead, I'm narrowing the complaint to just
‘Access To Government' 1st Amendment
issues[.]”). In line with this narrowed scope,
Plaintiff's specific objections focus primarily on his
First Amendment claims. The Court reviews the
Report-Recommendation's findings on these issues de novo.
While Plaintiff's Objections also reference his other
claims, these paragraphs are copied nearly verbatim from his
Amended Complaint, and thus the Court reviews the Magistrate
Judge's findings on these issues for clear error.
Barnes, 2013 WL 1121353, at *1 (“[I]f an
objection is . . . a mere reiteration of an argument made to
the magistrate judge, a district court need review that
aspect of a report-recommendation only for clear
Court agrees with Judge Hummel's ultimate conclusion that
all of Plaintiff's claims must be dismissed. However, the
Court departs from Report-Recommendation's finding that
several of Plaintiff's allegations are barred by Heck
v. Humphrey, and instead dismisses these allegations for
failure to state a claim. Additionally, the Court dismisses