Horicianu v. Cross et al

Filing 5

ORDER GRANTING 2 Motion for Leave to Proceed in forma pauperis -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, plaintiff's request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915(a). HOWEVER, issuance of a summons and service of the complaint are held in abeyance because plaintiff is granted thirty (30) days from the date of this Order, i.e., by October 27, 2010, to file an amended complaint in conformity with the requirements s et forth in the Attached Written Summary Order. For the convenience of plaintiff, and in light of his pro se status, instructions on how to amend a complaint are attached to this Order. Should the amended complaint fail to correct the deficie ncies of the instant complaint or otherwise fails to satisfy pleading or jurisdictional requirements, this action will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appea l would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Summary Order to pro se plaintiff. SO ORDERED by Judge Dora Lizette Irizarry on 9/27/2010. (Irizarry, Dora)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------x FLORIN HORICIANU, pro se, Plaintiff, -againstJAMES CROSS; JERRY MARTINEZ; ROCKY DOWD; THOMAS GOMEZ; HECTOR SUAREZ; JANE DOE 1-100; JOHN DOE 1-100, Defendants. --------------------------------------------------------x DORA L. IRIZARRY, United States District Judge: Plaintiff Florin Horicianu filed this action pro se on September 3, 2010.1 The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). However, issuance of a summons and service of the complaint are held in abeyance because, for the reasons discussed below, plaintiff is granted thirty (30) days from the date of this Order, i.e., by October 27, 2010, to file an amended complaint. For the convenience of plaintiff, and in light of his pro se status, instructions on how to amend a complaint are attached to this Order. STANDARD OF REVIEW In reviewing plaintiff's complaint, the court is mindful that, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 1915 (e)(2)(B), a district court shall SUMMARY ORDER 10-CV-4122 (DLI) (MDG)

The court notes that this is plaintiff's third action filed in this Court. See Horicianu v. Doe, 10-CV-3818 (DLI) (MDG) (on September 24, 2010, leave granted to amend the complaint, which failed to set forth subject matter jurisdiction); Horicianu v. Szot, 07-CV-2361 (DLI) (LB) (dismissed for lack of subject matter jurisdiction on June 19, 2007). 1

1

dismiss an in forma pauperis action where it is satisfied 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." Moreover, a plaintiff must establish that the court has subject matter jurisdiction. Rene v. Citibank NA, 32 F. Supp. 2d 539, 541-42 (E.D.N.Y. 1999). DISCUSSION Plaintiff's claims cannot proceed as defendants will be unable to meaningfully respond to the instant complaint. Plaintiff states that "[m]any BOP employees are making the life of inmates worse than the life of animals in the zoo." (Compl. at 1.) Plaintiff further alleges that "defendants opened, in fifteen separate occasions, the [p]laintiff's legal mail without the [p]laintiff's knowledge and consent . . . ." (Compl. at 2.) Plaintiff seeks $2 million in monetary damages. (Compl. at 4.) The Bureau of Prisons Inmate Locator website indicates that plaintiff was released from custody on September 4, 2008. See http://www.bop.gov/iloc2/InmateFinderServlet?. However, plaintiff does not allege what correctional facility he was housed in when the events he complains of took place, when the alleged violations of his rights occurred, or the dates of his incarceration. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, plaintiff must provide a short, plain statement of claim against each defendant named so that they have adequate notice of the claims against them. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiff must provide facts sufficient to allow each defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005) ("fair notice" is "`that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.'") (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). 2

CONCLUSION Accordingly, in light of this court's duty to liberally construe pro se complaints, plaintiff is granted thirty (30) days from the date of this Order, i.e., by October 27, 2010, to file an amended complaint. Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000). Plaintiff is directed that his amended complaint must comply with Rule 8(a) of the Federal Rules of Civil Proce