Opinion
5:18-cv-1086 (DNH/TWD)
12-07-2018
ALONZO LAMAR HARRIS, Plaintiff, v. STEVEN B. YARBROUGH, et al., Defendants.
APPEARANCES: ALONZO LAMAR HARRIS Plaintiff, pro se 18582 Cayuga County Jail 7445 County House Road Auburn, New York 13021
APPEARANCES: ALONZO LAMAR HARRIS
Plaintiff, pro se
18582
Cayuga County Jail
7445 County House Road
Auburn, New York 13021 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
The Clerk has sent to the Court for review a civil rights complaint filed by pro se Plaintiff Alonzo Lamar Harris, commenced under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), together with a renewed application to proceed in forma paupers ("IFP Application"). (Dkt. Nos. 1, 5.) Plaintiff, who is presently confined at the Cayuga County Jail, has not paid the required filing fee. Named as Defendants are: A-Z Homes, LLC; American Title Service Agency, LLC; Associates Realty Company; Jolene Barrett; Brian Calley; Capital Fund, LLC; Amy Clarke; George Clarke; Cricket Corporation Office; Cricket Integrated Wood Components Inc.; Fed Ex Office; First Arizona Title Agency, LLC; Senator John Flanagan; David S. Gould; Charles Green, Sr.; Carl E. Heaster; Ron Herb; George Hildebrant; Akurn Johnson; Jubilee Parish; Amanda Kamp; John F. Kamp; Michael Levault; Lewis Brisbors Bisgard and Smith LLP; Mitch McConnel; John Moore; Redeem Christian Church of God; Chris Reynolds; Paul Ryan; H. Dana VanHee; Steven B. Yardbrough; and William Zimmer Law Offices. (Dkt. No. 1 at 2.) A review of the civil cover sheet indicates Plaintiff alleges, among other things, violations of his constitutional rights under the First, Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments. (Dkt. No. 1-3.)
Plaintiff's initial IFP Application (Dkt. No. 2) was denied as incomplete and the case was administratively closed on September 27, 2018. (Dkt. No. 4.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Plaintiff states this action is related to United States v. Alonzo Lamar Harris, No. 3:17-CR-0254 (GTS). Id. The Court takes judicial notice that on October 4, 2018, following a jury trial in the Northern District of New York, the Hon. Glenn T. Suddaby, Chief U.S. District Judge, presiding, Alonzo Lamar Harris was found guilty of (1) Conspiracy to Possess with Intent to Distribute and to Distribute a Controlled Substance and (2) Conspiracy to Launder. See United States v. Alonzo Lamar Harris, No. 3:17-CR-0254 (GTS), Dkt. No. 184. Plaintiff is scheduled to be sentenced on February 6, 2019. Id., Dkt. No. 185.
II. IFP APPLICATION
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) (2006). After reviewing Plaintiff's second IFP Application (Dkt. No. 5), the Court finds that Plaintiff meets this standard. Plaintiff has also filed the inmate authorization form required in this District. (Dkt. No. 6.) Therefore, Plaintiff's second IFP Application (Dkt. No. 5) is granted.
The total cost for filing a civil action in this Court is $400.00, consisting of the civil filing fee of $350.00, see 28 U.S.C. § 1914(a), and an administrative fee of $50.00. Although an inmate who is granted in forma pauperis status is not required to pay the $50.00 administrative fee, he is required to pay, over time, the full amount of the $350.00 filing fee regardless of the outcome of the action. See 28 U.S.C. § 1915(b)(3). Plaintiff should also note that although his second IFP Application has been granted, Plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
II. LEGAL STANDARD FOR INITIAL REVIEW
Having found that Plaintiff meets the financial criteria for commencing this case in forma pauperis, and because he seeks relief from a governmental entity or an officer or employee of a governmental entity, the sufficiency of the allegations set forth in his complaint must be considered in light of 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
Section 1915(e) directs that when a plaintiff is allowed to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . 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)(i)-(iii). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed with his action.
Similarly, § 1915A directs that a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief can be granted; or . . . seeks monetary relief against a person who is immune from such relief." 28 U.S.C. § 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both §§ 1915 and 1915A are available to evaluate prisoner pro se complaints).
In determining whether an action is frivolous, the 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). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted).
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) (citation omitted).
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.), cert. denied, 513 U.S. 836 (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. 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. (internal quotation marks and citation omitted). Allegations that "are so vague as to fail to give the defendants adequate notice of the claims against them" are subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without granting 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). 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).
III. DISCUSSION
When reviewing a complaint under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, courts are guided by applicable requirements of the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain
(1) a short and plain statement of the grounds for the court's jurisdiction . . .;Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 "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(JSR), 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)). The statement should be short because "[u]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Salahuddin v. Cuomo, 861 F.2d 40, 41-42 (2d Cir. 1998) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281, at 365 (1969)).
(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.
Rule 10 of the Federal Rules of Civil Procedure 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. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.Fed. R. Civ. P. 10(b). The purpose of Rule 10 is to "provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]" Laspisa v. Citifinancial Does 1 to 20, 269 F. Supp. 3d 11, 13 (N.D.N.Y. 2017) (citations omitted).
Upon review, Plaintiff's rambling 174-page complaint against 32 Defendants fails to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. With respect to the pleading requirements under Rule 8, the Second Circuit has stated as follows:
When a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative or in response to a motion by the defendant, to strike any portions that are redundant or immaterial, see Fed. R. Civ. P. 12(f), or to dismiss the complaint. 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. See Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).Salahuddin, 861 F.2d at 41-42. Such is the case here. The rambling complaint is confused, speculative, repetitive, argumentative, and, at times, unintelligible. Even more problematic, however, is the apparent substance of this civil action and the relief requested. For example, on page 45, Plaintiff provides the following "summary" of the "grounds for relief:"
Each Defendant # 1-32, has willfully engaged in numerous of government conspiracies, fraud and false instrument acts in the sole purpose defrauding 'Plaintiff' and United States leaving long line of 'paper trail' of duress, duress coercion, cohering, and entrapment evidence.Id. at 45. On pages 97 and 98, Plaintiff lists the following claims:
Plaintiff, is being forced to stand criminal trial on a fabricated Indictment, Perjury, Retaliation Case.
The United States Government and New York Informants is responsible for Endangering the Plaintiff Life, Liberty, Freedom, and endanger Plaintiff family and friends lives, just because government informants wanted to remain free. In January 2015, they scheme a plan to attack the Plaintiff as a Government Pawn to target the U.S.-Mexico Border leaving the Plaintiff, Plaintiff family and friends in permanent harms way until debt is paid in full to Mexico Cartel members living in Mexico Borers. Conspiracy to commit Murder!
First Claim: Obstruction of Administration of Justice; Violating the Election in Compliance with an informal Justice Department policy of avoiding bringing prosecutions that could be seen a political and influence voters.(Dkt. No. 1 at 97.)
Second Claim: Deprivation of Rights under the Fourth, Fifth, Sixth, Thirteenth, and Fourteenth Amendment; "First Amendment Right" to Privacy; Abuse Process; Malicious Prosecution, Conspiracy Inhouse; Illegal Search and Seizure, Retaliation.
Third Claim: Hate Crimes US-Mexico Border; Endangerment; Equal Protection Law; Equal Protection Causes; Confrontation Clauses, Grand Jury Perjury Investigation; Media Slander; Libel; Slander, Defamation, Freedom of Speech, Eighth Amendment Torture!
All text quoted from Plaintiff's complaint is unaltered.
Plaintiff's claims are "continued" on the following page:
First Claim: Due Process of Rights, Double Jeopardy Clauses; Abuse of Public Office; Duress and Entrapment; Deaf Threats; Illegal Eavesdropping; Cricket Cellphone Store committed Internet Fraud, Forgery, False Instrument, Wire Fraud, Illegal Eavesdropping, Solicitation, Alternation of Instrument; Aiding and Abetting; Tainted Physical Evidence; First, Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendment; Manifest Injustice; Discovery, Privileged Communication, Privileges, Protection of Rights, Election Law.Id. at 98.
Second Claim: Conspiracy in Withholding Evidence; Denial of Rights to Confrontation Rights to Examination of Informants Integrated Wood Components, Inc., John F. Kamp; Amanda Kamp; Jolene Barret, Amy Clarke, during entire investigation mail fraud, bribery, extortion, legal ethics, professional conducts and Edward Reed exchange to committed perjury; concealing Integrating Complained, Inc. has 32 workers employed at company that touches all mail and handle all incoming and outcoming mail inhouse conspiracy.
Third Claim: Intentional Infliction of Emotional Distress; Equal Protection Clauses of the Fourteenth Amendment; Warrantless Entry of Iphone; Illegal Search & Seizure.
In addition to significant monetary damages, Plaintiff seeks, inter alia, to be immediately released from custody. Id. at 97. However, to the extent Plaintiff seeks to be released from custody, "he can do so only on a properly submitted petition seeking a writ of habeas corpus, not in a Section 1983 action." Keyes v. Juul, 270 F. Supp. 2d 327, 330 (E.D.N.Y. 2003); see generally Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) (holding that habeas relief is the exclusive remedy for a prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release from custody). Moreover, civil lawsuits may not be used to collaterally attack criminal convictions. Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court held that:
in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for harm caused by other actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.512 U.S. at 486-87; see also Praileau v. Fischer, 930 F. Supp. 2d 383, 396 (N.D.N.Y. 2013) (stating "[u]nless, and until, the conviction is challenged and adjudicated" in the plaintiff's favor, the plaintiff's § 1983 claims are barred under Heck); Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) ("a state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration") (emphasis in original).
Had Plaintiff filed a well-organized complaint of reasonable length, the Court would sort through Plaintiff's allegations one at a time against the named Defendants and address each in turn to determine whether Plaintiff had stated a cognizable claim under § 1983 and/or Bivens. To screen the complaint in its current state, however, "would be enormously wasteful of [the Court's] resources." VTech Holdings Ltd. v. Pricewaterhousecoopers, LLP, No. 03 Civ. 1413, 2003 WL 21756623, *1 (S.D.N.Y. July 30, 2003) (finding "nothing short and very little plain about" a complaint that was "113 pages and 179 numbered paragraphs in length, exclusive of exhibits and scores (perhaps hundreds) of separate subparagraphs"). Neither the Court nor a properly named Defendant should be required to expend the time, effort, and resources necessary to parse through Plaintiff's longwinded 174 page-complaint in order to determine what federal claims Plaintiff has plausibly alleged, if any, and which are not subject to Heck's bar, if any.
Therefore, the Court recommends dismissing the complaint in its entirety without prejudice and with leave to amend consistent with the foregoing. See, e.g., Reddy v. Catone, No. 5:13-cv-707 (MAD/ATB), 2014 WL 2611351, at *2 (N.D.N.Y. June 11, 2014) (dismissing 150 page complaint with 300 additional pages of exhibits for failure to comply with Rule 8) (collecting cases); see also Jones v. Nat'l Commc'ns & Surveillance Networks, 266 F. App'x 31, 32 (2d Cir. 2008) (affirming dismissal of a 58 page, single-spaced pro se complaint with 87 additional pages of attachments, alleging over 20 separate causes of action against more than 40 defendants for failure to meet the "short and plain statement" requirement of Rule 8); Roberto's Fruit Market, Inc. v. Schaffer, 13 F. Supp. 2d 390, 396 (E.D.N.Y. 1998) (dismissing a 108 page, 385 paragraph complaint for violating Rule 8 based on its finding that "the complaint [was] excessively long-winded and redundant"); Infanti v. Scharpf, No. 06CV 6552 (ILG), 2008 WL 2397607, at *2-3 (E.D.N.Y. June 10, 2008) (dismissing a 90 page complaint comprised of over 500 paragraphs for running afoul of Rule 8's requirements); Bell v. Lasaceli, No. 08-CV-0278A, 2009 WL 1032857, at *2 (W.D.N.Y. Apr. 15, 2009) (dismissing a 200 page pro se complaint naming 42 defendants for noncompliance with Rule 8). The Court takes no position at this time on the merits of any such amended complaint.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's second IFP Application (Dkt. No. 5) is GRANTED; and it is further
ORDERED that the Clerk shall provide the Superintendent of the facility that Plaintiff has designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 6), and notify that official that Plaintiff has filed this action and is required to pay to the Northern District of New York the entire statutory filing fee of $350 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk shall provide a copy of Plaintiff's inmate authorization form (Dkt. No. 6) to the Financial Deputy of the Clerk's Office; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be sua sponte DISMISSED without prejudice and with leave to amend on initial review for failure to comply with the Federal Rules of Civil Procedure and pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, 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). Dated: December 7, 2018
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. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge