Sanders v. NYSDOCCS et al, No. 9:2019cv01314 - Document 7 (N.D.N.Y 2020)
Court Description: DECISION AND ORDER: It is hereby ORDERED that the # 6 amended complaint is accepted for filing and will supersede and replace the previously filed complaint; and it is further ORDERED that the Clerk shall update the docket to add the following pa rties as defendants: (1) Corrections Officer John Doe #1; and (2) Corrections Officer John Doe #2; and it is further ORDERED that plaintiff's Eighth Amendment excessive force claims against Corrections Officer John Doe #1 and Corrections Offic er John Doe #2 SURVIVE sua sponte review and require a response; and it is further ORDERED that the Clerk shall terminate DOCCS and Upstate Correctional Facility as defendants; and it is further ORDERED that the Clerk shall send a copy of this Dec ision and Order to the New York State Attorney General's Office; and it is further ORDERED that, to the extent possible, the New York State Attorney General's Office produce the information specified above regarding the identities of John Doe #1 and John Doe #2 within thirty (30) days of the filing date of this Decision and Order. Upon receipt of a response from the New York State Attorney General's Office, the Clerk shall return this file to the Court for further review. Signed by Judge Brenda K. Sannes on February 18, 2020. {Notice of Compliance Deadline 3/18/2020} (Attachments: # 1 Case Law, # 2 Case Law, # 3 Case Law, # 4 Case Law, # 5 Case Law, # 6 Case Law, # 7 Case Law, # 8 Case Law, # 9 Case Law, # 10 Case Law, # 11 Case Law, # 12 Case Law, # 13 Case Law)(Copy served via regular mail on plaintiff, copy served via regular mail on the AG's office along with a copy of the # 6 Amended Complaint)(rep)
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Sanders v. NYSDOCCS et al Doc. 7 Att. 3 Myers v. Wollowitz, Not Reported in F.Supp. (1995) 1995 WL 236245 U.S.C. § 1915(a). If the plaintiff qualifies by economic status, the court must then consider whether the cause of action stated in the complaint is frivolous or malicious. Moreman v. Douglas, 848 F.Supp. 332, 333 (N.D.N.Y.1994) (Scullin, 1995 WL 236245 Only the Westlaw citation is currently available. United States District Court, N.D. New York. J.); Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir.1983) (per curiam). James N. MYERS, Jr., Plaintiff, v. Heather WOLLOWITZ, Attorney, Defendant. In the present case, upon review of the plaintiff's inmate account statements, the Court has determined that plaintiff's financial status qualifies him to file or “commence” this action No. 95–CV–0272 (TJM) (RWS). | April 10, 1995. in forma pauperis. 28 U.S.C. § 1915(a). Turning to the second inquiry, a court may “dismiss the proceeding under Attorneys and Law Firms 28 U.S.C. § 1915(d) if the court thereafter determines that ... the action is frivolous or malicious.” Moreman, 848 F.Supp. at 333 (citation omitted). James N. Myers, Jr., Troy, NY, pro se. In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable DECISION AND ORDER McAVOY, Chief Judge. I. Background *1 Presently before this Court is the above-captioned plaintiff's application to proceed in forma pauperis and civil rights complaint. Plaintiff has not paid the partial filing fee required to maintain this action. For the reasons stated below, plaintiff's complaint is dismissed pursuant to 28 U.S.C. § 1915(d) and Local Rule 5.4(a) of the General Rules of this Court as without arguable basis in law. In his pro se complaint, plaintiff seems to claim that plaintiff was represented by defendant Wollowitz, a public defender for the County of Rensselaer, in a County Court proceeding. Plaintiff alleges that after a criminal proceeding in that Court, plaintiff was “sentenced to a illegal sentence.” Id. at 2. Plaintiff contends that due to the ineffective assistance of his counsel, defendant Wollowitz, his constitutional rights were violated. For a more complete statement of plaintiff's claims, reference is made to the entire complaint filed herein. II. Discussion Consideration of whether a pro se plaintiff should be permitted to proceed in forma pauperis is a two-step process. First, the court must determine whether the plaintiff's economic status warrants waiver of fees and costs under 28 basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Although the court has the duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983), there is a responsibility on the court to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis. Dismissal of frivolous actions pursuant to 28 U.S.C. § 1915(d) is appropriate to prevent abuses of the process of the court, Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir.1974), as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327. See generally Moreman, 848 F.Supp. at 334. *2 42 U.S.C. § 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights. See, e.g., Von Ritter v. Heald, 91–CV–612, 1994 WL 688306, *3, 1994 U.S.Dist. LEXIS 17698, *8–9 (N.D.N.Y. Nov. 14, 1994) (McAvoy, C.J.). A party may not be held liable under this section unless it can be established that the defendant has acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3rd 625, 628 (2d Cir.1994) (noting state action requirement under § 1983); Wise v. Battistoni, 92–Civ–4288, 1992 WL 380914, *1, 1992 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Dockets.Justia.com Myers v. Wollowitz, Not Reported in F.Supp. (1995) 1995 WL 236245 U.S.Dist. LEXIS 18864, *2–3 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). In the present case, the sole defendant named by plaintiff is the Rensselaer County public defender who apparently represented plaintiff in the criminal proceeding discussed in his complaint. See Complaint at 2. However, “[i]t is well settled that an attorney's representation of a party to a court proceeding does not satisfy the Section 1983 requirement that the defendant is alleged to have acted under color of state law....” Wise, 1992 WL 380914 at *1, 1992 U.S.Dist. LEXIS 18864 at *2–3; see also D'Ottavio v. Depetris, 91–Civ–6133, 1991 WL 206278, *1, 1991 U.S.Dist. LEXIS 13526, *1–2 (S.D.N.Y. Sept. 26, 1991). Since the plaintiff has not alleged any state action with respect to the Section 1983 claim presently before the Court, plaintiff's complaint, as presented to this Court, cannot be supported by any arguable basis in law and must therefore be dismissed pursuant to 490 U.S. at 328. End of Document 28 U.S.C. § 1915(d). Neitzke, Accordingly, it is hereby ORDERED, that leave to proceed or prosecute this action in forma pauperis is denied, and it is further ORDERED, that this action is dismissed pursuant to 28 U.S.C. § 1915(d) and Local Rule 5.4(a) of the General Rules of this Court as lacking any arguable basis in law, and it is further ORDERED, that the Clerk serve a copy of this Order on the plaintiff by regular mail. I further certify that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a). IT IS SO ORDERED. All Citations Not Reported in F.Supp., 1995 WL 236245 © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
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