Opinion
6:21-cv-680 (BKS/TWD)
07-21-2021
JOHN JAMES ALTIMONTE, Plaintiff, v. DR. RONALD M. LEBOZ, CAROL ALTIMONTE, JOSEPH PAUL ALTIMONTE, Defendants.
JOHN JAMES ALTIMONTE Plaintiff, pro se
JOHN JAMES ALTIMONTE Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge
John James Altimonte (“Plaintiff”) filed an action against Dr. Ronald M. Leboz, Carol Altimonte, and Joseph Paul Altimonte (collectively, “Defendants”). (Dkt. No. 5.) Currently before the Court is Plaintiff's application to proceed in forma pauperis (“IFP Application”). (Dkt. No. 2.) A court may grant in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's IFP Application (Dkt. No. 2), the Court finds Plaintiff meets this standard. Therefore, his IFP Application is granted.
Plaintiff should note that, although his application proceed in forma pauperis has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that - . . . (B) 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). Additionally, when reviewing a complaint, the Court may also look to the Federal Rules of Civil Procedure (“Federal Rules”).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim 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). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id. In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
A pro se litigant's pleadings are held to a less strict standard than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”). Because Plaintiff is proceeding pro se, the Court construes his pleadings “to raise the strongest arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
Moreover, a court should not dismiss a pro se complaint “without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Generally, Plaintiff claims he is the victim of human trafficking:
What Dr. Leboz an his gang have done to my Mother, they are now doing to me. It is human trafficking, of 1st my Mother-and now me. And these forms are only more torture. So I deserve- No Protection!(Dkt. No. 5 at 5.) He further suggests that he lost his mother, his career, his well-being, and is “being forced from [his] home.” Id. at 7. The complaint references a “gang assault” and a “violation” of 18 U.S.C. §§ 241, 242, “since 2011-continues!” Id. at 8. According to Plaintiff, “This never ends because no one has or will-ask any of the Gang Members any Questions!” Id.
Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Here, the collection of allegations in Plaintiff's complaint do not provide any indication of the causes of action Plaintiff intends to assert against Defendants or whether this Court has jurisdiction over the action. Rule 8 of the Federal Rules provides that a pleading must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction . . .;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8(a). Rule 8's purpose “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.” Hudson v. Artuz, No. 95-CIV. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).
Moreover, Rule 10 of the Federal Rules provides, in part:
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances....Fed. R. Civ. P. 10(b). Rule 10's purpose is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Sandler v. Capanna, Civ. A. No. 924838, 1992 WL 392597, at *3 (E.D. Pa. Dec. 17, 1992) (citation omitted).
A complaint that does not comply with these Rules “presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims, ” and may properly be dismissed by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). “Dismissal, however, is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Artuz, 1998 WL 832708, at *2 (internal quotation marks omitted).
Here, the Court recommends the complaint be dismissed because it is not acceptable under Rules 8 and 10 of the Federal Rules and Plaintiff's claims are entirely unclear. However, considering his pro se status, the Court also recommends Plaintiff be given an opportunity to amend the complaint to comply with the basic pleading requirements discussed above. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).
Insofar as Plaintiff intended to rely on 18 U.S.C. §§ 241, 242, the Court notes these statutes are criminal statutes, which do not give rise to civil liability or authorize a private right of action. See Storm-Eggink v. Gottfried, 409 Fed.Appx. 426, 427 (2d Cir. 2011) (“[T]here is no private right of action under [18 U.S.C.] § 242[.]”); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (affirming dismissal of plaintiff's claim under 18 U.S.C. § 242 because this “criminal statute . . . do[es] not provide private causes of action”); Muhammad v. Smith, No. 3:13-CV-760 (MAD/DEP), 2014 WL 3670609, at *7 (N.D.N.Y. July 23, 2014) (“18 U.S.C. § 241 is a criminal statute which does not create a private cause of action.”).
Specifically, any amended complaint must comply with Rules 8 and 10 of the Federal Rules. Any such amended complaint must clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Any such amended complaint will replace the existing complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 5) be DISMISSED IN ITS
ENTIRETY AND WITH LEAVE TO AMEND, and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).